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Manual of 
California Land Title Law 



Compiled by 

George W. Hope 



Published by 

The Recorder Printing and Publishing Co. 

jointly with 

California Pacific Title Insurance Co. 

San Francisco, California 



Copyright, 1926, by 

California Pacific Title Insurance Co., 

San Francisco, California. 






Manual of 
California Land Title Law 



Compiled by 

George W. Hope 



Published by 

The Recorder Printing and Publishing Co. 

jointly with 

California Pacific Title Insurance Co. 

San Francisco, California 



Copyright, 1926, by 

California Pacific Title Insurance Co., 

San Francisco, California. 



% ] 
25150^ 



% 



INTRODUCTION 






This Manual of California Land Title Law was 
originally compiled by the California Pacific Title 
Insurance Company for its own use. Because of their 
interest in it the work has been made available to 
other title companies. So far as we know it is the 
first attempt by a title company to create a compre- 
hensive, systematic compilation of this character. 
Undoubtedly errors will be found, and use of the book 
will indicate changes in form which will increase its 
value. We request that any user of the book who dis- 
covers errors, or who has any suggestion for its im- 
provement, call the matter to the attention of this 
company in order that proper corrections can be made 
in subsequent revisions of the work. 

In order to provide for supplement and ex- 
pansion, page numbers are left blank at the end of 
each subject. The plan has been to indicate the 
end of each subject by the words "End of Subject", 
and to commence the next subject with a number 
which is a multiple of five. For example: The 
first subject "California Land Titles— Historical 
Review" ends with page 8. The next subject "United 
States Public Lands" begins with page 15. The sub- 
ject "Aliens" begins with page 75 and ends with page 
88. The next subject "Bankruptcy" begins with page 
95. In this way space is left at the end of each 
subject for additional material on that subject. 

A thin coin, (if you have one), can be used 
as an instrument to loosen the screws. 



California Pacific Title Insurance Company. 



CALIFORNIA LAND TITLES 



HISTORICAL REVIEW 



HISTORICAL: 

California until the year 1822 was an overseas 
possession of Spain by right of discovery. Its govern- 
ment, outside of the missions, was purely military, taking 
authority thru the Viceroy of Mexico from the Crown of 
Spain, speaking by its Royal Council of the Indies. 

Independence from Spain and allegiance to Mexico 
was proclaimed at Monterey, April 9, 1822, and thereafter 
California was ruled by governors and their subordinate 
officials with a representative in the Mexican Congress. 

The American Flag was raised at Monterey July 7, 
1846, upon commencement of hostilities with Mexico, fore- 
stalling the claims of England, Russia and France. At the 
close of the war the treaty at Guadalupe Hidalgo, proclaimed 
by the President, July 4, 1848, gave California to the 
United States with the provision that bona fide Mexican 
property rights should be "inviolably respected". Cali- 
fornia was admitted into the Union as a State by Act of 
Congress approved September 9, 1850. 



DIVISION OF PUBLIC DOMAIN; 

A knowledge of the disposition of the public 
domain of the United States is essential to a proper un- 
derstanding of California titles, and the laws which govern 
them. They consist primarily of what are known as "Land 
Grants", including - 

1. Mexican land grants 

2. State land grants 

3. Railroad land grants 

in addition to which must be considered the former Pre- 
emption laws, repealed in 1891, the Homestead, Timber and 
Stone and Desert entries ; also lands within Military and 
Indian reservations, National parks and Forest reserves, 
Mining lands held under license or patented and Townsite 
entries. 

MEXICAN LAND GRANTS : 

Under the treaty at Guadalupe Hidalgo, Mexican 
land grants took priority over other claims and in 1851 
Congress appointed a Board of Land Commissioners to which 
all such claims, "floating" or "in place", had to be pre- 
sented for determination, subject to review by the Federal 
Courts. Upon adjudication Mexican grants and claims were 
allowed or rejected. Many were spurious, a considerable 
number having been irregularly donated by the Mexican 
governors to their friends or adherents for political 
reasons or to forestall American possession. Some had 
lapsed by abandonment and some were too vague to be 



located. Successful claimants received a patent upon approval 
and survey. Rejected titles were dropped out. The United 
States Supreme Court decided in 1861 that the patent carried 
title to all minerals within the boundaries of the grant. In 
a few cases where the holder of a Mexican ranch title, subse- 
quently rejected, had deeded his land in parcels to settlers, 
Congress passed a remedial act in favor of bona fide purchas- 
ers to avoid the hardship of forfeiture. The records in many 
counties contain deeds and instruments to so-called Spanish 
ranches, and references to the same, which never obtained 
legal recognition and are now ignored. 

DIVISION OF SPANISH AND MEXICAN CLAIMS : 

These were of four main classes. 

1. Grants by specific boundaries, giving the donee 
everything within the exterior lines. 

2. Grants by quantity, giving the donee a certain 
number of acres in a specified locality. 

3. Grants of a certain named rancho, leaving the 
acreage and boundaries to be ascertained by testimony. 

4. Grants of the Pueblo lands to the embryo cities 
around the presidios or missions. 

CITY LANDS ; 

Regarding Pueblo lands, title comes to the United 
States by treaty subject to the rights of Mexican claimants, 
from the United States to the city by patent and from the 
city to two classes of persons: 



(a) Those who acquired by purchase from the 
city of its unoccupied lands sold for revenue purposes ; 
and 

(b) Those who derive their interest as succes- 
sors to occupants and settlers under the laws of Mexico and 
whose rights were preserved to them by treaty. 

Our courts have held that the cities which succeed- 
ed to the Mexican pueblos held the pueblo lands in trust for 
the inhabitants and that the State Legislature is empowered 
to control the execution of this trust. 

LAW GOVERNING: 



In dealing with California titles it should be 
remembered that the' Statute of April 13, 1850, adopted the 
common law of England, and not the Mexican law, as the law 
of the land when not repugnant to the Constitution of the 
United States or of the State (4468 Pol. Code) and so late 
as 1917, Justice Henshaw, with four judges concurring, ruled 
that where the codes are silent the English common law 
prevails. 

STATE LAND GRANTS: 



The Congressional act creating the State imposed 
the condition that no law should ever be passed impairing 
the right of the United States to dispose of its lands within 
the State, and that no taxes or assessments should ever 
be laid upon the same. Thus it becomes necessary to look 
behind a State patent as a source of title and ascertain 



that the land has been either granted to the State, or, 
in the case of lieu lands, that the State selection has 
been approved and has been relinquished by the General Land 
Office at Washington, D. C. It has been the custom of the 
State authorities to sell such lands upon selection, and 
prior to Federal approval and relinquishment, and to issue 
certificate of sale to purchasers. Under Section 3521, 
Political Code, no patent can issue from the State until 
such approval. 

The State upon its creation as such took two 
classes of lands: 

1. Those it owned by virtue of grants from the 
United States ; and 

2. Those it owned by reason of its sovereignty, 
such as the shore of the sea and of its bays and inlets. 
All tide lands below high-water mark not disposed of by 
Mexico, became State lands on admission, subject to rights 
of navigation and fishery, and so did lands uncovered by 
the recession of inland lakes. 

As an aid to public education and maintenance 
of schools the State took the Congressional grant of Sec- 
tions 16 and 36 in every township, and where these sections 
fell short by reason of prior possession and other causes, 
lands of equal area known as "lieu" lands could be selected 
in their stead. 

Half a million acres for internal improvement 
under the act of Congress of 1841 came to the State on her 



- 






admission, not by title to any specific lands but by quan- 
tity to be selected later from the public domain; seventy- 
two sections were granted to the State for a seminary of 
learning. In 1850 the Swamp and Overflow lands were granted 
to California by Congress. 

The 150,000 acres granted the State for an 
agricultural college are under control of the Regents of 
the University, and moneys from sale of same, and of the 
72 seminary sections, and of 10 sections granted for erec- 
tion of public buildings is invested under their authority, 
while school land sale and alienation is supervised by the 
surveyor general. 

About 200 sections of the Political Code per- 
tain solely to the property of the State, its selection, 
sale and alienation. A title man should acquaint himself, 
at least in a general way, as to how this great body of 
land passes from the United States. These lands have 
passed through various State authorities into the hands of 
purchasers by different processes of acquirement or selec- 
tion duly confirmed, sale evidenced by certificate. Often 
numerous assignments and deeds appear of record before 
the patent is given, for under No. 3519, Political Code, 
this patent issues in the name of the original applicant 
and inures to the benefit of his legal successors. A 
complete chain of title must therefore appear of record 
from the patentee (the original purchaser) to the actual 
owner of the land. 



RAILROAD LAND GRANTS : 

To encourage the opening up of undeveloped ter- 
ritory, liberal grants were in past years made to railroad 
companies from the public domain, which grants included 
land for rights of way, depot sites and tracks, and the 
alternate, odd-numbered, sections within defined limits on 
either side of the roadbed, and, as in the case of State 
School grants, indemnity or lieu lands were given for such 
of the alternate sections that were unavailable within the 
lines of the primary grant ; these lieu lands were usually 
confined to a belt of territory lying adjacent to and 
parallel with the original grant. 

Where patents have issued they usually reserve 
the minerals as provided by the Act of 1862, sometimes 
they reserve the minerals, except coal and iron. 

The question as to whether lands are mineral 
or not, and the final decisions thereupon are matters of 
moment to purchasers from the Railroad Company for un- 
patented lands, whose deeds to them purport to convey what- 
ever interest the grantor "may hereafter acquire under 
United States patent". This is vital in the case of oil 
lands. A searcher's summing up of the title must be made 
subject to reservations in United States patents. 

Lands within the primary grant are known as 
"floating" lands until the definite location and approval 
of the railroad, and as "in place" lands thereafter, and 
title passes finally as of the date of the original land 



grant. The indemnity selections have no such certainty, 
and although selected and sold on contract by the Railroad 
Company they depend on deficiencies in the "in place" sec- 
tions, and the list of selections made must be investi- 
gated, passed on, and certified to by the Secretary of the 
Interior. 

The records sometimes show that these lieu land 
unapproved selections have been taken up by settlers. An 
examination of the Federal records of the district should 
be made, or, in case of doubt, a statement from the Land 
Office at Washington, D. C, procured. 

(End of subject) 



15 



UNITED STATES PUBLIC LANDS 

The United States system of land surveys was originated 
in 1784 by the Continental Congress, Thomas Jefferson being 
President of the committee in charge. The first enact- 
ment was passed May 10, 1785, providing that the "Western 
Territory" should be divided into townships of 6 miles square 
by lines running due North and South and others crossing them 
at right angles. We have 14 principal meridians of which 3 
govern such lands in California, the Mount Diablo Meridian, 
covering central California and Nevada; that of San Bernar- 
dino obtaining in the South and the Humboldt Meridian in the 
North. 

The boundaries of the public lands once established, 
approved by the Surveyor-General and accepted by the Govern- 
ment, are unchangeable. 

In practice we find that, owing to the curvature of 
the earth's surface, the township squares are shorter on the 
North line than on the South and the angles, owing to faulty 
surveying, are not all right angles. 

The townships are divided into 36 sections, each one 
mile square or 80 chains on the four outside lines, contain- 
ing 640 acres. The sections are numbered from 1 to 36 com- 
mencing at the northeast corner and proceeding west and east 
alternately thru the township. A quarter section is 160 
acres, and a "quarter-quarter" 40 acres. 

In subdividing a township into sections the survey 



16 



commences at the southeast corner and, proceeding west along 
the south boundary, projects lines north one mile apart. The 
same method is pursued north along the east boundary for the 
east and west lines. Thus any surplus or shortage is thrown 
into the northern and western tiers of sections. 

The residuary portion of an irregular section, after 
the subdivision into as many quarter-quarters as it is suscep- 
tible of, is divided into numbered lots lying along the north 
and west lines of the township. 

On the United States land office maps the Mexican 
ranchos are shown by an exterior boundary line with a lot 
number to distinguish them and no interior lines. Rejected 
land grants are sectionized. Some of these ranchos were 
surveyed into Spanish sections which should be 482 acres 
or 69.44 chains on each side. 

Care must be exercised in searching titles where 
the government surveys and these ranch boundaries meet. 
Owing to inaccurate contract survey work there is often a 
shortage or a surplus, and though the chain of title may be 
perfect on each side of the line, one or other of the owners 
is short on acreage. Such lands should be described by metes 
and bounds, using the ranch line as a tie. 

Some Mexican ranchos have been surveyed by the owners 
into townships and sections to harmonize with adjoining gov- 
ernment surveys. Descriptions in deeds referring to these 
sections were upheld in 116 Cal. 596. 



17 



UNITED STATES HOMESTEADS: 



A United States Homestead is a parcel of the public 
domain which has been settled upon by the entryman and has 
been entered in the proper United States Land Office for 
patent, as required by the Acts of Congress providing for 
such homestead entries. It is not to be confused with the 
homestead which may be created from property already owned 
by the persons creating the homestead under state statutes, 
in order that such property cannot be sold to satisfy the 
debts of the owner of such property. The Federal homestead 
law requires a certain period of residence upon the property, 
and certain improvement thereof before patent will issue to 
the entryman. Proof of compliance with the various provi- 
sions of the Act must from time to time be filed in the 
land office. 

No title is acquired that can be conveyed until 
final proof, payment of fees and certificate issued. Even 
after final proof and transfer to a third party, the bona 
fides of the original entryman can still be attacked by the 
government until patent is issued (176 U. S. 448). An excep- 
tion is made as to deeds for school purposes, rights of way 
for public utilities, etc., made before proof. The Land De- 
partment has ruled that a deed of the homestead made in con- 
templation of death prior to final proof, is an attempted 
testamentary disposition and not an alienation under Section 
2291 of the Revised Statutes, and the heirs may proceed to 
acquire the title. 



18 



Lieu land and Indemnity selections claimed by the 
State or by Railroads under Congressional grants confer no 
vested rights until approved by the Interior Department (133 
U. S. 496). 

Indemnity selections under the school land grant to 
the State require no patent from the United States, in whom 
title remains vested until certified lists are finally issued 
to the State by the Interior Department. 

The creation of a Forest Reserve under Act of March 3, 
1891, defeats selection prior to approval (133 U. S. 496). 
MINING CLAIMS ; 

Under certain acts of Congress where mines are dis- 
covered upon the public domain, the discoverer may occupy and 
work the same without applying for patent therefor, provided 
there shall be expended upon each mining claim or upon an 
adjoining claim for the benefit of such claim at least one 
hundred dollars each year. 

Though title to a mineral claim is possessory only prior 
to patent dependent on certain acts and duties to be performed, 
still such title as it may be is treated by the courts generally 
as practically a title in fee. It may be deeded, mortgaged, 
leased and passed by will or by descent to heirs under the laws 
of succession until actual abandonment or loss by adverse claim. 
RAILROAD GRANTS; 

To stimulate the construction of railroads during the 
early development of the West, grants of rights of way to be 



19 



subsequently located, and grants of large areas of the public 
domain were made to various railroads by specific acts of Con- 
gress. Under these acts patents were afterwards issued to the 
railroads in question covering the lands specified. 

Congressional grants to Railroads within the original 
place limits are usually construed as present grants, the 
patent which follows being considered as a confirmation of 
same and not a conveyance in itself. These grants are open 
to attack prior to patent by proof of mineral character, or 
on account of valid homestead or pre-emption rights existing, 
and after patent the question of mineral character may be 
raised. 

The original grant to the State of the 16th and 36th 
sections for school purposes is an absolute present grant. 
SWAMP AND OVERFLOW LANDS ; 

As to the original grant to the State in 1850, the 
United States Supreme Court has held that title remains in 
the United States until patent to the State, and where error 
or fraud appears in the official survey, a new survey may be 
made which will be binding on the State. 

The Congressional Act of 1866 provides that a swamp 
land return upon the approved township plat is conclusive of 
the State's rights, and the California Supreme Court held same 
to be as binding as a patent, but the United States Supreme 
Court seems to have overturned this decision. In practice it 
is safe to assume that the State under the original grant 
obtains an equitable title only that may be defeated for error 



20 



in survey or fraud and absolute title passes only by patent 
to the State. 

The State will not issue its patent until the certi- 
ficate of purchase is surrendered and as the Political Code 
now reads the patent is issued to the original purchaser, 
but inures to the benefit of the assignee. The chain of 
title from patentee to present owner must, of course, ap- 
pear of record and is often broken, necessitating the pro- 
curing of deeds, or assignments and sometimes a suit to 
quiet title. The State land office records at Sacramento 
often explain defects in the title. A letter of inquiry 
to the Surveyor-General usually elicits an answer that 
clears up deficiencies in the chain of title as shown by 
the county records. 

(End of subject) 



25 



IK SL LANDS , HOW CONTROLLED : 

Under the Federal Constitution Congress controls dis- 
position of National Territory and has placed same by statute 
under control of the Secretary of the Interior, whose Land 
Department is in charge of the Commissioner of the General 
Land Office. (32 Cyc. 1000.) The land laws are executed by 
these officials as a special tribunal. 

The Registrars and Receivers of local land offices 
are agents of the Interior Department with ministerial powers 
and tho authorized to decide certain questions of fact, their 
decisions are subject to supervision by the Commissioner. The 
Land Department has power to annul a certificate of purchase 
at any time before patent has issued, but when a person has 
complied with all requirements to obtain patent he is vested 
with a complete equitable estate which he can convey or 
encumber. 

PATENT TO HEIRS OF DECEASED CLAIMANT; 

When U. S. patent runs to heirs of deceased entryman 
after his death the patent inures to said heirs "as if their 
names had been specially mentioned" under the Pre-emption 
Act. (See 128 Cal. 150.) This applies also to Homestead Act, 
Donation Act, Timber Culture Act and Bounty Land Act. (See 
2269 Rev. Stat, of U. S.) 

It does not apply to Desert Land or Mineral Lands and 
Mining Act in which the point is covered by Sec. 2448, Revised 
Stat, of U. S., under which the title inures to heirs, devisees 
or assigns as if patent had issued to decedent during life. 
(In re Evans, 235 Fed. Rep. 956.) See also Phillips vs. Carter, 
135 Cal. 604 and 170 Cal. 596. Sec. 1724, C. C. P., applies only 
to cases where the federal law treats a patent to heirs as 
giving them title as purchasers and not by succession. (See 
No. 514114.) 

When Patent to Heirs of a deceased claimant passes 
title to such heirs as purchasers and not by succession, 
the probate court has no jurisdiction over the land, a find- 
ing as to who the heirs are is necessary. (128 Cal. 150.) 

U. S. HOMESTEAD, SEPARATE PROPERTY ; 

Passes title to married man, patentee, as his sepa- 
rate property as a donation or gift from U. S. Government, 
172a C. C. does not apply. (199 Pac. 1104 and Cal. cases cited.) 

FULL PAYMENT GIVES EQUITABLE TITLE : 



One who has done everything that is necessary to en- 
title him to a patent has a complete equitable estate in the 
land which he can sell or convey, mortgage or lease. (32 Cyc. 
1080, 103 Cal. 367.) 



26 



It should be noted, however, that Receiver's final 
receipts now state that purchaser will be entitled to a 
patent "if all then be found regular." This makes it un- 
safe to vest such title in the United States "in trust for" 
the holder of the final receipt as some title companies 
have formerly done. 

APPLICATION GIVES NO RIGHTS TILL P AYMENT: 

Until application approved and money paid in, appli- 
cant has no interest capable of transfer. (158 Cal. 632.) This 
affects 3519, Pol. Code, under which patent runs to applicant. 

UNIVERSITY LANDS ; 

For approval of state listings by U. S. Land Office 
at Washington, D. C, write to Acting Land Agent, University 
of California, Berkeley. 

FOREST RESERVES , LIEU SELECTION, METHOD : 

The Act of June 4, 1897, is an invitation to private 
owners to exchange their lands inside the Forest Reserves 
for land outside. The General Land Office demands a complete 
abstract of title, certified to by the County Recorder and 
also the recordation of a deed to the United States. Record- 
ing this deed is merely an offer of conveyance and the deed 
passes no title until formal delivery by acceptance by the 
United States. If delivery is refused, no grant by the 
United States is made, but proof of rejection is found in 
the local U. S. Land Office. The repealing act of March 3, 
1905, withdraws the proposal of exchange. Offers made pre- 
vious by recording deeds lapse unless already accepted by 
the Government. (See Roughten v. Knight, 156 Cal. 123.) 

The Relief Act of September 22, 1922, does not apply 
to cases as above after rejection, but only to cases in 
abeyance. 

MEXICAN LAND LAWS ON SECESSION FROM SPAIN : 

The Mexican Congress, after the country had thrown 
off the government of Spain and had erected a new and inde- 
pendent government in its place, representing the sover- 
eign power of the nation, passed the law of 1824, providing 
for the grant and colonization of the public lands. This 
law provided that the lands of the nation which were not 
the property of any individual, corporation or town, were 
subject to the law and to the right to be colonized; and 
for this purpose the congress of the states should, with 
the least delay, enact laws and regulations for colonizing 
within their respective boundaries, conforming in all re- 
spects to the constitutive act, the general constitution, 
and the rules established by the law of 1824. The law 



27 



then prohibited the colonization of any land within twenty 
leagues bordering on any foreign nation, or within ten 
leagues of the seacoast, without the consent of the Supreme 
Government, and further provided that in the distribution 
of the lands preference was to be given to Mexican citi- 
zens, that no person should be allowed to obtain a grant 
of more than eleven leagues, and that no person who might 
obtain a grant under the law should retain it if he resided 
out of the limits of the republic. it was then further 
provided that the executive should proceed in conformity 
with the principles established by the law of 1824 to the 
colonization of the territories of the republic. 

The supreme executive government, acting under the 
foregoing provision, on November 1, 1828, established regu- 
lations for the granting and colonization of the public 
lands in the territories, and among others, in California. 
These regulations provided that the governors or political 
chiefs of the territories were authorized to grant vacant 
lands within their respective territories to either Mexi- 
cans or foreigners who might petition for them with the 
object of cultivation or settlement, and that such grants 
should be made according to the laws of the general con- 
gress of August 18, 1824, and under their qualifications. 
The regulations then set out a series of preliminary pro- 
ceedings, specially enjoined for the purpose of ascertain- 
ing the fitness of the petitioner to receive a grant, and 
also of ascertaining if the land asked for might be granted 
without prejudice to the public or individuals. It was 
required that every person soliciting land should address 
to the governor a petition expressing his name, country, 
and religion, and describing as definitely as possible by 
means of a map the lands asked for , that the governor 
should proceed to obtain the necessary information, whether 
the petition contained the proper conditions required by 
the law of August 18, 1824, both as regarded the land and 
the petitioner, in order that the application might be at 
once attended to, or if it be preferred, that the munici- 
pal authority might be consulted whether there was any 
objection to the making of the grant; that this being done 
the governor would accede or not to such petition in con- 
formity to the laws on the subject ; but that if the grant 
was made it must be in strict conformity with the laws on 
the subject, and especially with reference to the law of 
1824, that the grants made to individuals or families 
should not be definitely valid without the previous con- 
sent of the departmental assembly; and that the definitive 
grant asked for being made, a patent signed by the governor 
should be given to serve as a title to the party interested, 
wherein it must be stated that the grant was made in exact 
conformity with the provisions of the law, in virtue of 
which possession should be given. It was further provided 
that a record should be made of all petitions and grants in 
a book kept for that purpose, with maps or plats of the land 



28 



granted, and a circumstantial report should be provided 
quarterly to the Supreme Government. And there were many 
other stringent provisions and conditions imposed, the sys- 
tem thus established furnishing the highest evidence of the 
extreme interest the Mexican Government took in guarding 
against impositions and frauds by or upon the political 
chiefs in the execution of the law. These were the only 
laws of the Mexican congress passed on the subject of 
granting the public lands with the exception of those re- 
lating to the missions and towns. While the Mexican con- 
stitution of 1824 was in force, and after the passage of 
the national colonization law of August 18, 1824, the 
States of the Mexican Confederation possessed the property 
in the soil, and had alone the power, by direct agency of 
appropriating lands to individuals, but from and after the 
adoption of the constitution of 1836 no power to grant 
lands was vested in the separate states. 

Under the laws of Mexico, pueblos or towns, when 
once established and officially recognized, were entitled, 
for their benefit and the benefit of their inhabitants, to 
the use of lands, embracing the site of such pueblos or 
towns, and of adjoining lands within certain prescribed 
limits. (6 Wall. 363, 18 Law. Ed. 863.) These laws provided 
for the assignment to the pueblos, for their use and the 
use of their inhabitants, of land not exceeding in extent 
four square leagues. (32 Cyc. 1163.) 

The issuing of the patent was the last step in the 
obtaining of a land grant. The U. S. patent became requisite 
after the cession to the United States of California by the 
treaty of Guadalupe Hidalgo. (45 Cal. 527, 99 Fed. 618, 90 
Cal. 342, 47 Cal. 570.) The United States patent is a 
quitclaim of all interest. (32 Cal. 1229.) 

MEXICAN GRANTS MUST BE PROVED: 



Some Mexican grants, apparently valid, were rejected 
and lost because of failure to present them to the Board of 
Land Commissioners within the time allowed. The Treaty with 
Mexico recognized valid Spanish and Mexican land grants. 
Botiller vs. Dominguez (13 Pac. Rep. 685 in U. S. Sup. Ct. Rep, 
32 Law. Ed. 927) ruled that if act of Congress was in con- 
flict with treaty, the act prevailed and no Mexican grant in 
California was valid unless passed on under Act of 1851 by 
being presented to land commissioners. 

HOMESTEAD AND TIMBER CLAIMS EXEMPT FROM DEBT: 



It is expressly provided by statute that no lands 
acquired under the provisions of the Homestead Law shall in 
any event become liable to the satisfaction of any debt con- 
tracted prior to the issuing of the patent therefor, and 
that no lands acquired under the timber culture laws shall 



' 



29 



in any event become liable to the satisfaction of any debt 
contracted prior to the issuance of the final certificate 
therefor. (32 Cyc. 1082, 137 Cal. 414, 105 Cal. 214, 47 
Cal. 348.) 

DRAINED LANDS : 

Drainage of inland lakes and lands uncovered claimed 
by state. State has issued patents but listings must be 
approved by Washington Land Office. #397709. 

ALIENATION OF STATE LANDS : 

For statute governing this see Sees. 3395 to 3574, 
Pol. Code. 

TIDE LANDS : 

The U. S. Supreme Court in C. and C. of San Francisco 
v. Le Roy (U. S. Rep. 34 L. Ed. 1101), said: 

"The titles acquired by the United States 
to lands in California under tide waters, from 
Mexico, were held in trust for the future state, 
so that their ownership and right of disposition 
passed to it upon its admission into the Union. 
That doctrine cannot apply to such lands as had 
been previously granted to other parties by the 
former government, or subject to trusts which 
would require their disposition in some other 
way. " 

The Supreme Court of the United States in the case 
of Weber vs. State Board of Harbor Commissioners, (21 Law. 
Ed. page 202) said: 

"Although title to the soil under the 
tide waters of the bay was acquired by the 
United States by cession from Mexico, equally 
with the title to the upland, they held it 
only in trust for the future state. Upon the 
admission of California into the Union upon 
equal footing with the original states, abso- 
lute property in and dominion and sovereignty 
over all soils under the tide waters within her 
limits passed to the state, with the consequent 
right to dispose of the title to any part of said 
soils in such manner as she might deem proper, 
subject only to THE PARAMOUNT RIGHT OF NAVIGATION 
OVER THE WATERS, SO FAR AS SUCH NAVIGATION MIGHT 
BE REQUIRED BY THE NECESSITIES OF COMMERCE WITH 
FOREIGN NATIONS OR AMONG THE SEVERAL STATES, THE 
REGULATION OF WHICH WAS VESTED IN THE GENERAL 
GOVERNMENT. " 



30 



As to the trust under which the State of California 
holds such lands, this is set out very clearly in the case 
of Forestier v. Johnson (164 Cal. 24-30), as follows: 

"So far as may be necessary for the regu- 
lation of interstate and foreign commerce, the 
United States has the paramount right to con- 
trol the navigable waters within the several 
states. The state can make no disposition of 
the soil beneath or allow any interference with 
the navigable waters, that will impair this 
right and power of the United States. The title 
to the soil beneath such waters, including all 
that is covered with water at ordinary high tide, 
as well as lying below low tide, belongs to the 
respective states by virtue of their sovereignty. 
'It is a title held in trust for the people of 
the state that they may enjoy the navigation of 
the waters, carry on commerce over them, and 
have the liberty of fishing therein freed from 
the obstruction or interference of private 
parties ' . " 

Another clear decision is that in the case of Ward 
v. Mulford (32 Cal. 365), in which it is said: 

"The land which the state holds by virtue 
of her sovereignty, as is well understood, is 
such as is covered and uncovered by the flow 
and ebb of the ordinary tides. Such land is 
held by the state in trust for the benefit of 
the people. The right of the state is subser- 
vient to the public rights of navigation and 
fishery, and theoretically, at least, the state 
can make no disposition of them prejudicial to 
the right of the public to use them for the 
purposes of navigation and fishery, and what- 
ever disposition she does make of them, her 
grantee takes them upon the same terms upon 
which she holds them, and of course subject 
to the public rights above mentioned." 

Another case explanatory of the law governing such 
lands is that of (See the Illinois Central R. R. Co. vs. the 
People of the State of Illinois and the City of Chicago, U. S. 
Sup. Ct. Rep. 36 Law. Ed. 1018). 

Various enactments of the Legislature have provided 
the method by which sale could be made of swamp land and 
tide land. A great many purchases were made under the pro- 
cedure provided, but the purchasers have in many cases been 
deprived of their title to tide lands by the State. 

The Legislature by enactment dated April 4, 1870, pro- 
vided as follows: 



31 



"All swamp and overflowed, salt marsh 
and tide lands within one mile of the state 
prison of San Quentin; within five miles of 
the City and County of San Francisco ; within 
five miles of the corporate limits of the 
City of Oakland; and within two miles of any 
town or village, are hereby excluded from 
the provisions of this act; provided that this 
act shall not be construed to authorize the 
sale of any land below low tide." 

Sale of such lands could therefore be made only as 
provided by said act. 

The town of Wilmington was incorporated by an act of 
the legislature dated February 20, 1872. A number of the 
patents issued by the State of California to purchasers of 
tide lands at Wilmington were declared void by the Supreme 
Court of this State because said patents violated the pro- 
visions of the enactment of 1870 in that they were lands 
lying in two miles of an incorporated town. The Constitu- 
tion of the State of California of 1879 provided in Article 
15, Section 3, as follows: 

"All tide lands within two miles of any 
incorporated city or town in this State, and 
fronting on the waters of any harbor, estuary, 
bay or inlet used for the purpose of navigation 
shall be withheld from grant or sale to private 
persons, partnerships or corporations." 

On March 12, 1887, the legislature of the State of 
California repealed the former act of said legislature in- 
corporating the Town of Wilmington. After said repealing 
act had been passed certain purchases of lands were made 
at Wilmington; that is, applications for purchase, and sur- 
veys were approved, but before patents were issued the City 
of San Pedro was incorporated and for that reason the Supreme 
Court held in People vs. Banning Co. (166 Cal. 35), that Sec. 
3, Article 15, of the Constitution of 1879, prohibited said 
sales, notwithstanding that said lands were not within two 
miles of any town or city at the time the applications for 
purchase were made. 

Where sales were made and patents issued to lands 
not prohibited by the provisions of the Constitution, the 
Supreme Court stated in People vs. California Fish Co. 
(166 Cal. 576-598) as follows: 

"If any part of the tide land in con- 
troversy was open to sale when the sales 
thereof were made, the proper judgment would 
be that the defendants claiming under such 
patents owned the soil, subject to the ease- 



32 



ment of the public for the public uses of 
navigation and commerce, and to the right 
of the State, as administrator and controller 
of these public uses and the public trust 
therefor, to enter upon and possess the same 
for the preservation and advancement of the 
public uses and to make such changes and im- 
provements as may be deemed advisable for 
those purposes." 

Section 3, Article 15, of the Constitution of the State 
provides among other things that all tide lands within two 
miles of any incorporated town or city shall be withheld from 
grant or sale to private persons, partnerships or corpora- 
tions. The Supreme Court of this State in the case of Cim- 
pher vs. City of Oakland, 162 Cal. 90, held that this Section 
of the Constitution did not prohibit the State from granting 
tide lands to a municipal corporation, and further stated 
that the word "corporation" as used in said Section was modi- 
fied by the adjective "private" preceding it. And while said 
Section prohibited the State from granting to private corpora- 
tions, it did not prohibit the State from granting tide lands 
to municipal corporations. 

RIGHT TO U. S. OVER FILLED-IN LAND: 



Altho an upland owner holds a State grant to adja- 
cent lands formerly under navigable waters, and the U. S. 
Government has established a bulkhead line and the upland 
owner has filled in to such line, this line may be moved 
inshore and the fill removed to that extent by said govern- 
ment in aid of navigation, without liability. (Garrison v. 
Greenleaf Johnson L. Co., 237 U. S. 25.) 

ACCRETION: 



Title "by accretion" is acquired to "alluvion" or 
particles of material deposited by natural causes upon the 
upland soil so as to attach to and become a part of the land 
on which they are cast and are the property of the owner 
thereof. Filled-in land and accretions formed by means of 
human agency are not in this category and a distinction musl 
be made by the searcher where necessary. The deliberate or 
sudden deposit of one person's soil upon that of another is 
termed "avulsion" and no title immediately passes because the 
true owner can still identify his property. The actual status 
of lands bordering salt and fresh water should be investigated 
before passing title to land outside original patent bound- 
aries or where accretion is claimed. 

LOST PATENT: 



For certified copy of lost or unrecorded patent, write 
to the Hon. Commissioner of the General Land Office at Wash- 
ington, D. C. , giving description and local Land Office show- 
ing and enclose draft for necessary fee. 

(End of subject) 



40 



LAND MEASUREMENTS 

For the better understanding of land subdivision 
some data follows: 

Map of a government township showing adjoining sections: 



36 


31 


i2 


33 


34 


33 


36 


31 


1 


-. 


5 


4 


3 


- 


1 


6 


12 


7 


8 


9 


10 


11 


u 


." 


13 


18 


17 


16 


15 


14 


13 


18 


24 


11 


20 


21 


22 


23 


24 


19 


: ; 


X) 


29 


28 


V 


26 


: ; 


30 


36 


31 


32 


33 


!4 


35 


36 


31 


1 


6 


; 


4 


3 


- 


1 


6 



■ 


S 


* 


§ 


" 


8 


S 


8 


1 



Map of a section subdivided into acreage: 

A section is 1 mile or 80 chains 
square, 320 rods or 5280 feet, 
640 acres. 

A quarter section is half a 
mile or 40 chains square, 160 
rods or 2640 feet, 160 acres. 

USEFUL TABLES 
7.92 inches — 1 link 
25 links = 16-1/2 feet = 1 rod 

4 rods or 100 links or 66 feet = 1 chain 
80 chains or 320 rods or 8000 links or 5280 feet = 1 mile 
1 square rod — 272-1/4 square feet 
43,560 sq.feet or 160 sq. rods or 10 sq. chains = 1 acre 
1 acre =*» 208.71 feet square 
1 vara = 33 inches = 2-3/4 feet 
50 varas = 137-1/2 feet 
100 varas = 275 feet 
Circumference of a circle equals diameter times 3.1416. 
Area of a circle equals the square of the diameter times .7854, 



41 



Length of an arc equals number of degrees times .017453 
radius. 

The degree of a curve is determined by the central angle 
which is subtended by a chord of 100 feet. 

The deflection angle of a curve is the angle formed at any 
point of same between a tangent and a chord of 100 feet 
and is half the degree of the curve. 

The radius of a 1-degree curve is 5,729.65 feet, or 5,730 
feet for practical use. The radius of any curve can 
be found by dividing this number by the number of 
degrees of the curve. 

To read the length of a course between stations as marked 
for surveying, subtract the lower from the higher; 12 
plus 52 from 17 plus 83 equals 5 plus 31 equal to 531 feet. 

If no mention is made that the bearing is magnetic, it is 
understood to be true. 

To change magnetic bearing to true bearing, add the decli- 
nation if bearing is either Northeast or Southwest, 
and subtract if it is Northwest or Southeast. The dec- 
lination is not always given, and should be ascertained. 

A searcher should have at hand a small celluloid protractor 
for measuring angles and for making sketches by mete 
and bound descriptions when required. Courses in de- 
grees and minutes can be ascertained at once with small 
trouble. 

(End of subject) 



45 



RECORDATION 

HISTORICAL: 

The necessity for a legalized system of preserv- 
ing the contents of land title documents either by safe- 
guarding the muniments of title themselves, or of trans- 
cribing them by recordation, was recognized by ancient 
civilizations like Egypt and Assyria, and most countries 
possess such systems today. In England in the reign of 
Henry VIII, a law was enacted for the protection of inno- 
cent purchasers and to prevent fraud that "no conveyance of 
bargain and sale shall take effect unless it is enrolled in 
the Courts at Westminster or in the County where the land 
lies. " 

Registry laws were enacted in America in the several 
colonies soon after their settlement. In Massachusetts as 
early as 1641, a law was passed reciting as its purpose "for 
avoiding fraudulent conveyances and that every man may know 
what estate or interest other men may have in any houses, 
lands or other hereditaments they are to deal in". Today 
no prudent person would invest in real estate or obliga- 
tions secured by real property values without a search of 
the public records and a certificate or guaranteed evidence 
of title from a responsible title company. 
MARKETABLE TITLE; 

Technically there is no such thing as a perfect 
title. A marketable or merchantable title has been held to 
be "a title that is fairly deducible from the public records". 



46 



The public records not only give notice of their 
contents, but of all else that would place a prudent man 
upon inquiry and which he ignores at his peril. Thus (ex- 
cept possibly for the provisions of Section 869 C. C. amended 
August 17, 1923), a deed to John Smith, Trustee, or "as 
Trustee", places the searcher upon enquiry as to the nature 
of the trust. As a trustee only takes sufficient title to 
carry out the terms of his trust, John Smith may have no 
title he can transfer to a purchaser and such title as he 
failed to acquire under the deed to him in trust remains 
vested in the original grantor. 

In handling instruments to be subsequently placed 
of record, the escrow man must watch carefully that the for- 
malities demanded as a pre-requisite to recordation have 
been observed. The Recorder is the agent of the party 
filing the document, and errors or omissions in transcrib- 
ing are his errors and omissions, for notwithstanding that 
under Section 1170 C. C. an instrument is deemed to be re- 
corded when it is deposited with the proper officer, the 
Courts have ruled (131 Cal. 552) that this section must be 
read with Section 1213 making the instrument constructive 
notice of its contents only when acknowledged or proved 
and recorded as. prescribed by law, and this cannot take 
place until the instrument has been transcribed in the 
proper book. So, if a mortgage safely handed across the 
counter of the Hall of Records at the close of an escrow, 
should by error be copied into a book provided for Bills 



47 



of Sale or Agreements it would not impart constructive 
notice of its existence, and the escrow holder cannot 
feel safe in considering a deal closed when the documents 
are filed for record. He must follow them across the coun- 
ter, and see, not only that they get into the proper book, 
but that the names and initials are not misspelled nor 
figures transposed. 

TITLE BY PATENT ; 

As to lands derived from the United States it 
must be remembered that a Patent differs from a deed in 
that delivery is not necessary to pass title, and title by 
United States Patent is title by record, because it is pro- 
vided by Act of Congress that all patents must be recorded 
before they are issued; this is the final record of the 
whole transaction of acquiring the land and invests the 
grantee with the title. 

TORRENS SYSTEM; 

Registration under acts of the Legislature is 
either optional or compulsory. In the English dependen- 
cies it has usually been made compulsory under what we 
understand somewhat vaguely as "Torrens Systems", but in 
all countries where the Torrens systems have met with suc- 
cess, the act of registration is an adjudication by the 
Registrar of the rights of all persons after an investi- 
gation hedged about with all the safeguards and solemnities 



48 



of a high Court proceeding, and the act of the Registrar 
is not administrative, not merely clerical as in America, 
but is judicial in its nature and effect, and has never 
contemplated, as with us, that a public official, elected 
solely to transcribe documents accurately from the original 
into a copy book, should create titles and vested in- 
terests in real property as the ink drops from the end of 
his pen, construing, as he writes, trusts, powers and es- 
tates, without the intervention of Courts or the prohibi- 
tion of the United States Constitution regarding the taking 
of property without due process of law. 

It has been proved in actual practice that the Tor- 
rens registration law in California has failed to realize the 
promises of its advocates. It is cumbersome, slower than the 
accepted system of recordation, the certificate of ownership 
issued is subject to attack by innocent parties in interest 
not before the court, it is not cheap and is generally in 
disfavor by investors, banks and those who loan money on 
real estate. Moreover it has not disqualified our courts 
of their jurisdiction over either persons or property. 

(End of subject) 



55 



EVIDENCES OF TITLE 

An ABSTRACT OF TITLE is an epitome of the title 
papers affecting the land covered as shown by the public 
records, condensed to include only such essentials as are 
necessary to enable an examiner to trace the chain, pass 
on its validity, and ascertain all defects, liens and en- 
cumbrances affecting the title. It should be arranged 
chronologically, except possibly as to judgments, taxes 
and assessments, and concludes with a certificate signed 
by the party compiling it and stating what records have 
been searched. It is most important to examine this cer- 
tificate carefully, for the scope of the search is often 
limited to the records in the offices of certain named 
county officials and the opinion of the best attorney is 
of necessity limited to what the Abstract contains. 

A CERTIFICATE OF TITLE is an opinion written after 
an examination of the records, showing the status of the 
title with all liens and encumbrances outstanding at its 
date. In cases of loss caused by an error, negligence must 
be proved under the act of employment and a money judgment 
obtained which cannot always be collected. Until lately it 
outlawed in two years like a grocery bill. 

A GUARANTEE OF TITLE is in effect a policy of in- 
surance of the record title. It is defined in Section 453v 
C. C. and the word "guarantee" can only be used when the 



56 



$100,000 assurance fund called for by Section 453t has been 
deposited with the State Treasurer. This fund protects the 
owner of the guarantee against loss caused by error. In ad- 
dition to this those relying on "Guarantees" are further pro- 
tected by the more substantial financial position of those 
who have deposited the assurance fund. 

An action founded upon a loss or liability under the 
above methods of showing title must be commenced within two 
years from discovery of the loss suffered to avoid outlawry. 

A POLICY OF TITLE INSURANCE is similar to a guarantee, 
but is not confined to the records. It insures the actual 
title and protects the insured against loss or damage suf- 
fered by reason of any misstatements or guarantee made as to 
the title. 

It covers and guards against forgery, false persona- 
tion, fraud, instruments executed by minors or incompetents, 
invalid trusts, the community rights of husband and wife, the 
claims of undisclosed heirs and all such risks. It is backed 
by the deposits required by law to be made with the State 
Treasurer, and by the stock and assets of the issuing Title 
Company, whose transactions, moreover, are under the super- 
vision of the State Insurance Commissioner. 

(End of subject) 



60 



ACKNOWLEDGMENTS 



DEFINED 

An acknowledgment is a formal declaration before a 
duly authorized officer by a person who has executed an in- 
strument that such execution is his act and deed. 

REASON FOR 

An acknowledgment is requisite to enable an instru- 
ment (with certain specific exceptions) to be recorded and 
impart constructive notice of its contents and to entitle 
the instrument to be used as evidence without further proof. 
(168 Cal. 269.) 

WHAT MAY BE ACKNOWLEDGED 

Every private writing, except last wills and testa- 
ments, may be acknowledged, and the certificate of acknowledg- 
ment is prima facie evidence of the execution of the writing. 
(1948 C. C. P.) 

LAW GOVERNING 

The acknowledgment must be in accordance with the law 
of the place where the property is situated as the law stood 
when the acknowledgment was made. 

LAW REVIEWED 

The Statute governing acknowledgments has been fre- 
quently amended and changed, especially as to married women. 
A brief review may prove useful: 

From January 1, 1873, to July 1, 1891, the certificate 
of acknowledgment of a married woman must set forth (in ad- 
dition to the essentials of the general form) that upon an 
examination without the hearing of her husband, she was made 
acquainted with the contents of the instrument and thereupon 
acknowledged that she executed the same, and that she does 
not wish to retract such execution. (Sec. 1191, C. C.) 

Prior to January 1, 1873, it was her acknowledgment 
only that must be separate and apart from and without the 
hearing of her husband, not including being made acquainted 



61 



with the contents of the instruments. 

On and after July 1, 1891, the general form of ac- 
knowledgment by the wife is sufficient; prior thereto the 
special form with separate examination was imperative. The 
deed of a married woman was invalid without an acknowledg- 
ment up to March 14, 1895. (See Loupe v. Smith, 123 Cal. 
491.) 

CURATIVE ACT 

The Curative Act (so-called) cures all defects in 
the certificates of acknowledgment of instruments (includ- 
ing deeds by married women after July 1, 1891), recorded 
previous to January 1, 1921. The instrument imparts notice 
notwithstanding any defect, omission or informality in the 
execution or acknowledgment or the absence of any certifi- 
cate of acknowledgment. (1207 C. C.) This is final as to 
instruments of record for 15 years ; until such period has 
elapsed it must be shown in any action where the record 
is relied on that the original instrument was genuine. 

The Curative Act is a remedial enactment for the 
benefit of subsequent purchasers and encumbrancers, so if 
title under a deed improperly acknowledged has not passed, 
or is not passing under the search in hand, to a third party, 
it is well to call for a proper acknowledgment. It is the 
custom of title companies to accept the Act liberally. 

Section 1933, C. C. P., defines "execution" as the 
subscribing and delivering of an instrument, but the 
absence of a signature would seemingly bring it within the 
Statute of Frauds. 

The Curative Act does not apply to instruments 
affecting the Homestead, which must be acknowledged by the 
parties personally and cannot be proven by witness. (1242 
C. C.) An attorney in fact or a subscribing witness can 
neither execute nor acknowledge such instruments. (102 Cal. 
202.) 

THE THREE ESSENTIALS 

The California form of acknowledgment for an in- 
dividual calls for three principal essentials: 

(1) That the party making the acknowledgment appeared 
in person before the officer. 

(2) That he was "personally known" to the officer to 



62 



be the person executing. 

(3) That he acknowledged the execution of the instrument. 

HOW CORRECTED 

An acknowledgment cannot be corrected after delivery 
of the instrument except by a court of equity. (1202 C. C. 
and see 59 Cal. 507.) Where an instrument is found recorded 
with a faulty acknowledgment it is not sufficient for the 
notary to correct and initial the original acknowledgment 
and re-record the instrument, unless the transaction is 
covered by the Curative Act. A new acknowledgment should 
be called for. 

IS MINISTERIAL, NOT JUDICIAL 

The taking of an acknowledgment is a ministerial 
and not a judicial act. An officer of a corporation which 
is a party to the instrument may take the acknowledgment if 
not personally interested himself. (167 Cal. 392.) 

The cashier of a bank took the acknowledgment of 
the mortgagor in a mortgage running to the bank as mortgagee. 
It was held that his duties as a notary were distinct from 
his duties as an official of the bank. (See Bank v. Ober- 
haus, 125 Cal. 320.) 

So, too, the acknowledgment of one of several grantors 
before another of the grantors acting in his notarial capa- 
city was held to be good in Greve v. Echo Oil Co. (8 Cal. 
App. 275, 284), because he took no beneficial interest under 
the deed. 

The reasoning above does not apply to an acknowledg- 
ment taken by the grantee. He is interested in the transfer; 
an acknowledgment taken by him is void and the deed is not 
entitled to record. 

The acknowledgment by one of several grantors has 
been held good as to all but the one who took his own ac- 
knowledgment in 8 Cal. App. 284, 9 9 Cal. 39, and 120 Cal. 
311. 

AGREEMENT OF SALE 

If acknowledged by vendor alone, imparts good record 
notice (166 Cal. 426; 29 C. A. D. 162; 34 Cal. App. 184). If 
by vendee alone, it is not good constructive notice and suc- 
cessor to vendor is not bound by it (Keese v. Beardsley, 65 
Cal. 165; 213 Pac. 500). 



63 



IRREGULARITIES 



ABSENCE OR MISTAKE IN DATE 

Corpus Juris Vol. 1, Sec. 160, states: "While it 
is usual and proper for the certificate to state the day and 
year when the acknowledgment was taken, accuracy in this re- 
spect is not regarded as essential ; and if the certificate is 
sufficient in other respects, it will not be invalidated by 
a mistake in the date, or even by the entire want of a date, 
as in such case the true date of the acknowledgment may be 
shown by parol. It is sufficient that such date appears by 
evidence within the instrument itself, and in the absence 
of proof to the contrary it will be presumed that the 
acknowledgment was taken on the date of the execution of 
the instrument, or at least before the recordation thereof. 
The date of the certificate is prima facie evidence that 
the instrument was acknowledged on that day, and when the 
certificate and the deed bear the same date it is not to 
be supposed, in the absence of proof, that the acknowledg- 
ment was in fact taken before the deed was executed. Where 
the date of the deed is subsequent to that of the acknowledg- 
ment, the latter date may be taken as the true date of the 
deed. " 



NAME OF NOTARY OMITTED 

Where the official character of the officer is 
stated in the body of the certificate it need not appear 
in the subscription, and on the other hand, it is suffi- 
cient if the title of the officer be suffixed to the sig- 
nature, although his official character be not given in the 
body of the certificate. It has also been held sufficient 
that the seal of the officer, affixed to the certificate, 
showed his official character. (Corp. Jur. Vol. 1, page 
833, Sec. 168.) (See also decision in 150 Cal. 520, 
p. 534, as to substantial compliance with the statutory 
requirements. ) 



SEAL 

Where a form of seal is prescribed it must be sub- 
stantially followed. Statutory requirements have been held 
to be directory and substantial compliance is all that is 
required. (Corpus Juris.) The Notary must keep an official 
seal on which must be engraved the arms of the State, the 
name of the county for which he is commissioned and the words 
"Notary Public". (794 Pol. Code.) 



64 



SIGNATURE BY MARK 



Signatures by mark require the names of two wit- 
nesses to entitle an instrument to be acknowledged and re- 
corded if executed subsequent to June 30, 1903. (C. C. 14.) 



VENUE 



The venue must be given in all cases to show that 
the acknowledgment was made within the territorial juris- 
diction of the official. (135 Cal . 173.) 

BEFORE JUSTICE OF PEACE 



A Justice of the Peace cannot take an acknowledg- 
ment outside of his own county and the venue must be shown. 
If the instrument is to be recorded in another county a cer- 
tificate by the Clerk of the county in which he is acting 
must be added. (135 Cal. 173.) 



BEFORE RECORDER 



The Recorder of the Recorder's Court in cities of 
the Fifth and Sixth class may take acknowledgments within 
his own jurisdiction. (See Municipal Corpns. Act, Sec. 807 
and 883.) 



BEFORE POLICE COURT JUDGE 



The Judge of a Police Court may take acknowledg- 
ments within his jurisdiction. (179 C. C. P.) 



BEFORE MILITARY OFFICER 



Military officers as designated by the Federal Act 
of August 29, 1916, Art. 114, are authorized to exercise the 
general powers of a Notary Public, or of a United States con- 
sul in taking acknowledgments of persons subject to the mili- 
tary law, but only in foreign places where the army may be 
serving. 



PROOF OF EXECUTION 



Provision is made for the absence of personal 
acknowledgment by proof of execution and of handwriting. 
A certificate of proof of the execution of an instrument by a 
subscribing witness must set forth that the subscribing wit- 



65 



ness is personally known to the certifying officer to be the 
person whose name is subscribed to the instrument as a wit- 
ness. The subscribing witness must prove that the person 
whose name is subscribed in the instrument is personally 
known to him, that such party executed it and that the wit- 
ness subscribed his name thereto as a witness. (Sees. 1196 
and 1197 C. C.) When the proof of execution is established 
by proof of the handwriting under Sec. 1198 C. C. , the wit- 
ness proving handwriting must swear that he knew both the 
party who executed the deed and the subscribing witness, and 
that the signatures of both are genuine. The certificate 
must set forth also other matters required by said Section 
1198 of the Civil Code. 

FOREIGN ACKNOWLEDGMENT 

When a deed is acknowledged outside the State and 
is not in accordance with the statute, the certificate of the 
clerk of a court of record of the county where taken must be 
attached, showing that acknowledgment is in accordance with 
the laws of the State in which it is taken and that the offi- 
cer taking the same is authorized thereto. (1189 C. C.) 



NOTARY PU BLIC 

WHO MAY BE 

A notary must be of age, a citizen, male or female, 
and a resident of the county for which the commission is 
sought, for six months prior to appointment. He must give 
an official bond in the sum of $5,000.00 approved by a 
judge of the Superior Court of his county and file his oath. 

The notary's fees are fixed by statute. His 
activities are confined to the county for which he is com- 
missioned and his term of office is four years. On termina- 
tion of office, by death or otherwise, his records and public 
papers must within thirty days be delivered to the County 
Clerk, who must deliver them to his successor. 

CANNOT ACT AFTER HIS TERM 

A notary public cannot legally take an acknowledg- 
ment after his four-year term has expired. Such acknowledg- 
ments are void and of no effect. (152 Cal. 317; 107 Cal. 236.) 

RESPONSIBILITY 

The notary is criminally responsible under Sec. 167 



66 



of the Penal Code for falsifying his certificates and with 
his bondsmen is liable for damages for neglect or miscon- 
duct. Under our laws the certification of acknowledgment 
is a solemn act which even the notary himself, for reasons 
of public policy, cannot controvert. 

The notary is expressly forbidden to take the 
acknowledgment unless he knows that the person making the 
acknowledgment is the person described in the instrument. 

The courts have held that it is not enough that the 
person who signs and executes be introduced to the notary 
by a responsible party, because if that were sufficient there 
would be no purpose in requiring the oath, for such a per- 
son could always furnish the introduction. 

"Whom I am satisfied" is not the same as "personally 
known to me", and is not compliance with code requirement. 
(Kimball vs. Semple, 25 Cal. 446.) 

If a person who appears before a notary is not 
personally known to him, the notary should issue his cer- 
tificate on the oath of a credible witness and not upon 
personal knowledge. Failing which, the notary takes the 
acknowledgment at his own risk. Personal knowledge is not 
acquired through introduction by another. (See Anderson 
v. Aronsohn, Supreme Court, Sept., 1923.) 

A forged instrument may possibly be acknowledged 
without liability to the notary. He does not guarantee that 
the party who signed is the person he claims to be or that 
the name used is his true name. He was known to the notary 
by the name he signed, which has been held to be sufficient. 

The reputation of the notary for care and accuracy 
is usually a safe guide in handling instruments deposited 
with title companies. 



FORMS PRESCRIBED BY THE CIVIL CODE 

General form for individuals. (Sec. 1189.) 

STATE OF CALIFORNIA ) 

COUNTY OF ) 

On this day of , in the year 

, before me (here insert the name and quality 

of officer), personally appeared 

known to me (or proven to me on the oath of ) 

to be the person whose name is subscribed to the within in- 
strument and acknowledged to me that he (or they) executed 
the same. 



67 



Form for married women prior to July 1, 1891. (Sec. 1191.) 

STATE OF CALIFORNIA ) 

COUNTY OF ) SS 

On this day of , in the year 

, before me (here insert the name and quality 

of officer) , personally appeared , 

known to me (or proven to me on the oath of ) 

to be the person whose name is subscribed to the within in- 
strument, described as a married woman, and upon examination 
without the hearing of her husband, I made her acquainted 
with the contents of the instrument and thereupon she 
acknowledged to me that she executed the same, and that 
she does not wish to retract such execution. 

Form for attorney in fact. (Sec. 1192.) 

STATE OF CALIFORNIA ) 

COUNTY OF ) SS 

On this day of , in the year 

, before me (here insert the name and quality 

of officer), personally app e ar e d , 

known to me (or proven to me on the oath of ) 

to be the person whose name is subscribed to the within in- 
strument as attorney in fact of , 

and acknowledged to me that he subscribed the name of 

thereto as principal and his own as attor- 
ney in fact. 

Form for corporation. (Sec. 1190.) 

STATE OF CALIFORNIA ) 

COUNTY OF ) SS 

On this day of , in the year 

, before me (here insert the name and quality 

of officer) , personally appeared , 

known to me (or proven to me on the oath of ) 

to be the President (or the Secretary) of the corporation that 
executed the within instrument, and acknowledged to me that 
such corporation executed the same. 

Note: Where the instrument is executed on behalf of 
the corporation other than by the President or Secretary, in- 
sert the words "known to me to be the person who executed the 
within instrument on behalf of the corporation therein named." 

The President or Secretary of a corporation must 
acknowledge "that such corporation executed" the instrument. 



68 



(Sec. 1185 C. C, Statutes of 1905, page 603.) The personal 
acknowledgment of the President or Secretary is not good. 
(Sec. 1190 C. C.) And the officer must certify that such 
President or Secretary is personally known to him to be 
the President or Secretary of the corporation. (Statutes 
1905, page 603.) 



Form for corporation acting as attorney in fact 
for individual. 

STATE OF CALIFORNIA ) 

COUNTY OF ) S S 

On this day of _ , A. D. 192 , be- 
fore me, , a Notary Public in and for said 

County and State, residing therein, duly commissioned 

and sworn, personally appeared , 

known to me to be the President, and , 

known to me to be the Secretary of , 

the corporation whose name is subscribed to the within instru- 
ment, as the attorney in fact of , 

known to me to be the persons who executed the within instru- 
ment on behalf of said corporation, and acknowledged that they 

subscribed the name of thereto as 

principal, and the name of said corporation as attorney in 
fact. 



Acknowledgment by corporation as attorney in 
fact for another corporation. 

STATE OF CALIFORNIA ) 

COUNTY OF ) SS 

On this day of , 192 , before me 

(insert name and quality of officer), personally appeared 

, known to me to be the President, 

and , known to me to be the Secretary 

of , the corporation that executed the with- 
in and foregoing instrument, as the attorney in fact of 

, a corporation, and known to me to be the corpora- 
tion whose name is subscribed to the within instrument as the 

attorney in fact of said , and acknowledged 

to me that they subscribed the name of said 

thereto as principal, and the name of 

as attorney in fact, and that said 

executed the same as such attorney in fact. 



(End of subject) 



75 



ALIENS 

The first ALIEN LAND ACT became effective August 
10, 1913, and does not affect the right of aliens in property 
acquired prior to that date. It provides that aliens eligible 
to citizenship may acquire, transmit or inherit lands to the 
same extent as citizens. Aliens not eligible to citizenship 
may deal in land to the extent only as allowed by treaty 
between the United States and the alien's native country and 
may lease lands for agricultural purposes for a period not 
exceeding three years. 

The Act places in the same position as an ineligible 
alien, any company, association or corporation, domestic or 
foreign, in which a majority of the issued capital stock is 
owned by such aliens. 

Property falling to ineligible aliens by devise or 
inheritance must be sold and turned into cash before dis- 
tribution. 

Property taken in violation of the Act is held sub- 
ject to escheat to the State after proceedings instituted by 
the attorney-general. Any leasehold or interest less than 
the fee acquired in violation of the Act is also subject to 
escheat and sale as provided. 

The treaty with Japan referred to in the Act provides 
that "the citizens or subjects of the contracting parties shall 
have liberty to enter, travel and reside in the territories 
of the other, to carry on trade, wholesale or retail, to own 



76 



or lease and occupy houses, manufactories, warehouses and 
shops, to employ agents of their choice, to lease lands 
for residential and commercial purposes, and generally to 
do anything incident to or necessary for trade upon the 
same terms as native citizens or subjects". 

The second ALIEN LAND ACT was an initiative measure 
voted on affirmatively November 2, 1920. It became effec- 
tive December 9, 1920. It provides that aliens not eligible 
to citizenship may acquire, possess and transfer real prop- 
erty as allowed by existing treaties between other countries 
and the United States and not otherwise. This applies to 
corporations in which a majority of members are aliens or 
majority of stock is owned by aliens. 

Ineligible aliens may acquire stock in any asso- 
ciation, company or corporation authorized to own agricul- 
tural land to the extent prescribed by treaty but not other- 
wise. No such alien or alien corporation may be appointed 
guardian of the estate of a minor consisting of property 
which ineligible aliens or alien corporations are prohibited 
from acquiring. The public administrator or other compe- 
tent person or corporation may be appointed as such guar- 
dian. Sec. 5 governs action of any "trustee" (agent, guar- 
dian, attorney-in-fact) holding title for an alien, compels 
filing of an annual report with property, collections, con- 
tracts, etc., set out, with heavy penalty for violation. 

Property falling to such aliens by succession or 
thru probate proceedings must be sold. Escheat is provided 



77 



for by legal process. No such alien or corporation can 
hold possession longer than two years of land acquired in 
satisfaction of a mortgage or lien. Provision is made to 
cover evasion, disguised transactions and the legislature 
may amend the act to further its purpose or facilitate its 
operation. 

The Amendment of 1923 (Stat. 1923, p. 1020) pro- 
vides that no ineligible alien may be appointed guardian of 
any part of a minor's estate which such alien is prohibited 
to acquire. Trustees holding property must file reports 
with Secretary of State. Agricultural land acquired by 
foreclosure may be held for two years. Leasehold or in- 
terest less than fee, including cropping contracts, which 
are declared to be "an interest", escheat to State as of 
date of acquirement. The Court shall adjudge the value 
of the "interest" and enter judgment for amount for the 
State, which remains a lien from acquisition. Property 
shall be sold thereupon. Presumption of evasion arises 
when purchase money is paid by an ineligible alien and 
title taken by any other person, or if a mortgagee is 
given possession when a mortgage runs to such alien. 

The United States Supreme Court has recently 
decided four cases sustaining the power of the States under 
existing treaties with Japan, to prohibit Japanese subjects 
from leasing agricultural land, from owning stock in a cor- 
poration authorized to acquire such land and from making 
cropping contracts for cultivating the same. 



78 



(a) Terrace v. Thompson (1923), 263 U. S. 197, sus- 
tained the State of Washington law which confines the pro- 
hibition against the leasing of agricultural lands to aliens 
who have not in good faith declared their intention to 
become citizens. This, though differing from the language 
of the California laws, includes Japanese not born in the 
United States. The Court interpreted the treaty with Japan 
and found that it conferred no privilege of leasing agri- 
cultural land, though it did confer the liberty "to lease 
land for residential and commercial purposes". It ruled 
that each State, in the absence of treaty provision to 

the contrary, may enact laws prohibiting aliens from own- 
ing land within its borders; the right to own or lease 
land for other specified purposes impliedly negatives the 
right to own or lease land for purposes not enumerated. 

(b) Porterfield v. Webb (1923), 263 U. S. 225, 
sustained the California law affecting aliens ineligible 
to citizenship in regard to agricultural leases. 

(c) Frick v. Webb (1923), 263 U. S. 326. Here the 
Court decided that the right to carry on trade given by 
the treaty does not give the privilege to acquire stock in 
an agricultural corporation because such requirement would 
be inconsistent with the intention and purpose of the par- 
ties to the treaty. 

(d) Webb v. O'Brien (1923), 263 U. S. 313. This 
involved the validity (under the Act of 1920) of what are 
known as "cropping contracts", under which the ineligible 



79 



alien agreed to take his remuneration out of the profits 
upon sale of what he produced. The California Supreme 
Court in the Okahara case (216 Pac . 614) held that a 
cropping contract did not amount to an interest in the 
land as forbidden to ineligible aliens by the act. The 
District Court held similarly in 1921 in O'Brien v. Webb 
(279 Fed. 117). In the present case the United States 
Supreme Court reversed the court below and decided that 
the cropping contract was not a privilege granted by the 
treaty. This case was decided November 19, 1923, but 
already the California Act of 1920 had been amended by 
the Act of 1923 which expressly forbids cropping con- 
tracts, and in Section 8 provides for the forfeiture of 
any interest in real property less than the fee "includ- 
ing cropping contracts which are hereby declared to be 
an interest in real property". 

The Supreme Court in the Terrace case defined 
eligible aliens as "free white persons and persons of 
African nativity or descent. Generally speaking, the 
natives of European countries are eligibles ; Japanese, 
Chinese and Malays are not". It is questionable whether 
any Asiatic is eligible as a citizen. 
HAWAIIAN JAPANESE 

Citizens of the Hawaiian Republic on August 12, 
1898, became on annexation citizens of the United States. 
(Vol. 3 Fed. Stat. Am., p. 491.) Prior thereto the consti- 
tution of the Hawaiian Republic provided (Art. 17) that 



80 



"all persons born or naturalized in the Hawaiian Islands 
and subject to the jurisdiction of the Republic are citi- 
zens". (11 Hawaiian Rep. 166.) The certificate of the 
Secretary of the Territory "as to Hawaiian birth" is legal 
determination of facts stated under Act No. 79 H. T. 1907. 
These certificates should be supported by evidence that the 
Japanese has not renounced his citizenship by obtaining 
proof of residence, voting, marriage, or other data. 

The U. S. Immigration Commissioner sometime ago 
issued an order not to recognize birth certificates is- 
sued by the Hawaiian Territorial authorities. The Secre- 
tary of the Territory who issues these is appointed by 
the President, the Senate concurring, and is a Federal 
official. Altho such certificates are prima facie evidence 
of citizenship, they should be validated by independent 
investigation in every case. This is the method the Im- 
migration officials themselves adopt, but they retain the 
evidence of proof in their own possession and the claimant 
does not always have a copy of it. 

ALIENS MAY LOAN MONEY 

The Acts do not prohibit a Japanese subject or 
ineligible alien from loaning money secured by mortgage 
upon real estate, but upon foreclosure and sale he could 
not buy and acquire title that he could hold untainted by 
escheat for longer than two years. 



81 



TITLE PASSES BY DEED TO ALIEN 



A deed to an ineligible alien passes the legal 
title but is subject to all the provisions of the Act at 
the date of the transfer as to escheat, penalties and pro- 
hibition, while the Act of 1923 provides for escheat attach- 
ing as of date of acquirement. This may be construed to 
mean that if the ineligible alien should later deed to a 
citizen the escheat provision follows the transfer and is 
not remitted. 

ESCHEAT UNDER WASHINGTON ALIEN ACT 

Deed to an alien forbidden to own land is subject 
to escheat. See Case of Abrams vs. State in 9 L. R. A. N. S, 
186. A Washington decision where alien law is held con- 
stitutional and which decided: 

One deeding land to alien incapable of taking it, 
retains no interest therein even if such deed is forbidden. 

Failure of State to take proceedings in lifetime 
of such alien prevents escheat as against aliens capable 
of taking title. 

Deed from such alien to one capable of owning 
bars forfeiture by State. 

The Washington State statute is not as drastic as 
our present California alien land law, under which the pen- 
alty of escheat attaches at the date of acquirement, so that 
the above ruling as to deed from the alien passing a good 
title cannot be held to apply. 



82 



TREATMENT OF ALIEN INSTRUMENTS 

So as not to work a hardship on those of the alien 
races who are in fact citizens, by bona fide naturalization 
or birth, it is customary to call for such proof as will 
enable a title company to safely accept conveyances to or 
from such persons as sufficient. 

It is not safe to accept the so-called "landing 
certificate", for this is not binding against the Federal 
Government if used by the wrong person misrepresenting him- 
self or if used a second time by a person denied admission. 
The register of voters may help or a certificate of birth 
and the records of the Chinese Y. M. C. A. are usually accurate. 
No flat rule can be laid down, but the motto should be 
"Safety First" and the utmost care taken in the matter of 
identity and proof before passing any deed or instrument 
naming an apparent alien as a party. Any such transac- 
tion occurring in a search should be submitted to the com- 
pany's legal counsel for opinion and decision. 

Where deeds to citizens of Chinese, Japanese or 
alien race are sent in to be recorded or are handled in 
escrow a recital should be called for to be inserted 
after the name of the grantee giving his nationality, age, 
marital status, domicile, citizenship and such data as may 
serve to identify him. 
EVASIVE GUISE 

People vs. Cockrill, known as the Akada case (41 
C. A. D. 86, April 30, 1923), found defendant guilty of con- 






. 









. 



83 



spiracy. Akada, a Jap, bought land for his American-born 
minors from Souza, who deeded title to Cockrill, Akada's 
attorney. Akada took possession and raised crops. Trial 
court found both guilty. Appellate Court sustained judg- 
ment and upheld. Sec. 9 of Alien Act. 
JAPANESE SOLDIERS I NELIGIBLE 

A Japanese subject "enlist ed in the United States 
Army and was honorably discharged at Honolulu in 1919. The 
United States District Court, upon the terms of the Federal 
act allowing citizenship to aliens who fought in the war, 
admitted him as a citizen. The California Supreme Court 
upheld the State constitutional amendments and denied 
citizenship. (See case of Ichize Sato, July, 1923.) The 
Federal Court decision rendered at Boston, July, 1923, 
decided that the act of Congress granting the right of 
naturalization to aliens serving in United States forces 
during the war does not apply to Japanese, as they are 
not free white persons or of African nativity or descent. 
CHILD OF UNITED STATES PARENT S BOR N ABROAD 

Section 1993, U. S. Revised Statutes, declares chil- 
dren born out of the United States whose fathers at that 
date are citizens are themselves citizens, but these rights 
do not descend to the children whose fathers never resided 
in the United States. (84 Pac. 114.) 
HINDU AS CITIZEN 

A Hindu is not a "free white person" and as such 



84 



eligible to citizenship (U. S. v. Bhagat Singh Thind, 261 
U. S. Rep. 204 of Feb. 19, 1923). The defendant, a high caste 
Hindu of full Indian blood, was granted citizenship by the 
U. S. District Court for Oregon as of Caucasian descent. The 
U. S. Supreme Court decided that the words "Free white per- 
sons" used in Revised Statutes #2169 are words of common 
speech synonymous with "Caucasians" only as that word is 
popularly understood and not according to its scientific 
derivation and terminology. They must be interpreted in 
accordance with the understanding of the common man from 
whose vocabulary they were taken. While "Caucasian" and 
"White person" were treated as synonymous in the Ozawa 
case (260 U. S. 178) , they are not of identical meaning. 
HOMESTEAD OF ALIEN 

A Chinese alien acquired land legally prior to 
1910. After the Alien Land Act of August 10, 1913, he 
declared a homestead on it and subsequently died. The 
court decided that the homesteaded property would pass 
to and title vest in his widow, but she would hold sub- 
ject to the provisions of the act. (In re Lamb, 95 Cal. 
397-407. See also an old decision in 23 Cal. 109.) 
ALIEN POLL TAX LAW 

Constitutional amendment voted on November 2, 
1920. Effective December 9, 1920. Male aliens between 
21 and 60 years must pay an annual poll tax. This was 
fixed at $10.00 with compulsory registration of aliens. 



' 



85 



It is apparently in conflict with the treaty with Japan. 
NATURALIZATION 

The Cable bill, approved at Washington September 
22, 1922, changes rights as to citizenship radically by 
providing separate citizenship for married women. Its 
salient points are: 

(a) An alien woman married to a citizen or to a 
man who hereafter becomes naturalized does not thereby 
acquire citizenship. She must go thru the same procedure as 
a male alien except that no antecedent declaration of in- 
tention is necessary and the necessity of residence is 
reduced from five to one year. 

(b) A woman citizen who marries an alien (ex- 
cept an ineligible alien) does not lose citizenship with- 
out a formal renunciation unless she resides during marriage 
two years continuously in the country of which her husband 
is a subject or five years continuously outside the United 
States. An American woman marrying an ineligible alien 
ceases to be a citizen of the United States. 

(c) A woman who has lost her citizenship by 
marriage can regain it by acquiring citizenship as above. 
SOME EX AMPLES 

A Chinaman was born in the United States and is a 
citizen. He made trips to China, where he married a native 
Chinese woman and had children there. Later on he brought 
his son to the United States. The son is a citizen from 



86 



birth. (Sec. 1993, Vol. 2, Fed. Stat. An.) The same son 
brought over a Chinese woman and married her. The wife 
being incapable of citizenship does not take citizenship 
by her marriage. (Sec. 1994 Idem. ) A deed to these two 
as joint tenants would not pass a good title so far as the 
wife is concerned. 
LEASE TO ALIEN CORPORATION 

Business property was leased for 99 years to a cor- 
poration composed of Japanese stockholders and the Title 
Company was asked to insure the leasehold estate. It was 
refused on the ground that the lease is not permissible 
under the Alien Act of 1923 in that it doesn't come in 
under the treaty allowing a lease to citizens or subjects 
of the signatories. The reasons were as follows: 

Words and Phrases, Vol. 7, p. 6706, cites The Pizarro, 
15 U. S. (2 Wheat) 227, 245, 4 L. Ed. 226, where "subjects" in 
a treaty was construed as "citizens or inhabitants". 

A person domiciled in a country is a subject of 
that country. U. S. vs. Sam Chong (U. S.), 47 Fed 878, 885. 
The U. S. Supreme Court has held that a corporation is not 
a citizen. The question is settled. Paul vs. Virginia, 
8 Wall. (U. S.) 168, 10 L. Ed. 357. In re Eberle, 98 Fed. 
295, and Orient Insurance Company vs. Daggs, 172 U. S. 557, 
43 L. Ed. 552. A corporation therefore has no right "to 
own or lease houses, manufactories, warehouses or shops" or 
to "lease land for residential and commercial purposes" though 
a citizen or subject of Japan can do so under the treaty. 



87 



Under the Alien Act a corporation, the majority of 
stockholders being ineligible aliens, may take only under 
the treaty and not otherwise. Where the treaty is silent, 
a corporation cannot acquire. Under Sec. 7 of the Act any 
leasehold or interest less than the fee, wrongfully acquired, 
shall escheat to the State. Sees. 8 and 9 of Act deal with 
conspiracy to evade escheat and punishment therefor. 

In view of the fact that ineligible aliens are at- 
tempting to obtain control of land by methods not specifically 
forbidden by the Act, the above concrete example may pro- 
vide interesting information. 

JAPANESE IN UNITED STATES 

A recent estimate (1924) disclosed the following 
figures : 

Japanese in Washington State, 17,000, cultivating 
20,500 acres under lease. No Japanese own any land, as the 
law forbids it. In Oregon 224 Japanese are cultivating 
10,000 acres. In California two per cent of the popula- 
tion are Japanese or approximately 68,000. About 458,000 
acres of farm lands are being cultivated by Japanese who 
own outright 27,000 acres. Corporations of American and 
Japanese stockholders own 47,781 acres. Land leased to 
Japanese amounts to 192,150 acres; cultivated under crop- 
sharing contract, 191,000 acres; cultivated under labor 
contract, 70,137 acres. 



88 



ALIEN PROPERTY CUSTODIAN 



This official is appointed under the "Trading with 
the Enemy" Act, approved Oct. 6, 1917. Notice of seizure 
of the property of alien enemies is found recorded under 
which the property seized passes into the possession and 
control of the custodian. Local agents are appointed by 
him, usually a trust company. The deed by the custodian is 
made without any warranty, is practically a quitclaim of in- 
terest and right and should be carefully handled. Espe- 
cially is it advisable to see that the consideration 
is received by the custodian. The alien owner can then 
claim his exemption of $10,000 against the money only and 
not in the property itself. 

(End of subject) 



95 



BANKRUPTCY 
PURPOSE OF BANKRUPTCY LAW: 

(a) To distribute the assets of the bankrupt pro- 
rata among his creditors. 

(b) To give to the bankrupt immunity from his debts, 
so that he may do business again unhampered by previous in- 
debtedness. 

FEDERAL AND STATE LAW: 

The Federal Bankruptcy Act of July 1, 1898, suspends 
the State Insolvency Act, while the Federal Act is in force. 
(112 Fed. Rep. 323.) In so far as it is in conflict with the 
State Law. (136 Cal. 279.) The first legislation in this 
State on insolvency was the Statute of 1852, amended in 1858, 
1860, 1863 and supplemented 1875-6, and continued in force by 
Sec. 19, Pol. Code. It was repealed by the Insolvency Law of 
1880, which latter was amended in 1891 and 1893 and was re- 
pealed by the Act of 1895. (Act 392, Hennings Gen. Laws.) 

PROCEDURE: 

Bankruptcy proceedings are commenced by filing a 
petition involuntarily against the bankrupt, or voluntarily 
by him, in the United States District Court where he has 
his domicile. The bankrupt must file a schedule of his 
property showing its character and value, with a list of 
his creditors and amount due to each, and any securities 
held by them. Also a claim for any exemption the law 
allows him. (100 Fed. 262.) 

On hearing the petition the court enters an adju- 
dication of bankruptcy or dismisses the petition. (156 Fed. 
634.) 

EFFECT OF ADJUDICATION: 

An adjudication of bankruptcy operates in rem and 
is a caveat to all the world, having the effect of an attach- 
ment and an injunction; it brings the entire estate of the 
bankrupt, in so far as it is not exempt, into the custody of 
the law (153 Fed. 98), and appropriates it to the payment 
of his debts, and where followed by the appointment of a 
trustee, is constructive notice to everybody, at least within 
the Federal jurisdiction, of the transfer of title to the 
bankrupt's property, and such persons must take notice that 
the ownership of the bankrupt has ceased and become vested 
in the trustee. (7 C. J. 87.) 

TITLE AFTER ADJUDICATION: 

After adjudication of bankruptcy the creditors meet 



96 



and elect a trustee. Title to all property, wheresoever 
situate, of the bankrupt becomes vested in the trustee upon 
his appointment and qualification (7 Cal. App. 248) "as 
of the date he was adjudged a bankrupt". This affects all 
property owned at the date of filing the petition. There- 
after the trustee may compel surrender of all assets in 
whosoever's hands found. (184 U. S. 1) Payment by a debtor 
between filing petition and date of adjudication binds the 
trustee (186 Fed. 84). 

The Bankruptcy Act provides that if the creditors 
do not appoint a trustee or trustees the court shall do so. 
This power of appointment may be exercised by the referee. 
(7 C. J. 112.) 

I Title vests in the trustee only for the purposes of 
administration and distribution among the creditors. i (Brand. 
746.) 

The trustee must abandon to the bankrupt or the lien- 
holders any property that is a burden to the estate and not 
likely to realize anything for the creditors. 

If the trustee disclaims onerous property he cannot 
thereafter claim its benefits. (17 Am. Bankr. Rep. 391.) Upon 
abandonment or refusal of title by the trustee, the property 
revests in the bankrupt. (196 U. S. 115, 159 Fed. Brand. 760.) 

The debtor cannot sell, transfer or convey his prop- 
erty while the bankruptcy proceedings are pending. (7 C. J. 91.) 

PROPERTY OMITTED FROM SCHEDULE; 

Under Sec. 70-A, Sub. 5, of the Bankruptcy Act, the 
trustee is vested with title to all property of the bankrupt 
which prior to the filing of the petition he could by any 
means have transferred or which might have been levied upon 
and sold under judicial process against him. Such prop- 
erty is still within the jurisdiction of the court, the trus- 
tee having been discharged and the property not scheduled. 
Proceedings may be reopened under Section 2, Sub. 8, of the Act 
and a new trustee appointed under Section 44a. 

SALE BY TRUSTEE: 

The Bankruptcy Act expressly confers upon courts of 
bankruptcy power to "cause the estates of bankrupts to be 
collected, reduced to money and distributed", and in order to 
effect this it is proper to sell the property of the bankrupt 
which comes into possession of the trustee. (155 Fed. 838; 
205 Fed. 207 ; 7 C. J. 230. ) 

Where property of the bankrupt is subject to a mort- 
gage or other encumbrance it may be sold free of liens (185 
Fed. 576, 582), without any prior determination either as to 



97 



their validity or as to their amount or extent, if there 
is reasonable ground for believing that more can be realized 
than the amount of the encumbrance , in which case the proceeds 
of the sale are held subject to the liens. (7 C. J. 231.) 

If it be decreed more for the benefit of the bank- 
rupt estate, encumbered property may be sold subject to the 
encumbrances. (112 Fed. 958; 7 C. J. 234.) 

The Bankruptcy Act provides that "real and personal 
property shall, when practicable, be sold subject to the 
approval of the court ; it shall not be sold otherwise than 
subject to the approval of the court for less than 74 percen- 
tum of its appraised value". (7 C. J. 237.) 

EXEMPT PROPERTY; 

The title to property reserved by the State law as 
the debtor's exemption does not vest in the trustee in bank- 
ruptcy, but remains in the debtor, awaiting the mere legal 
formality of having it appraised and set apart to him. (113 
Fed. 766; 7 C. J. 362.) 

DISCHARGE: 

A bankrupt is entitled to receive a discharge as a 
matter of right, unless some of the reasons specified by the 
Bankruptcy Act for refusing discharge are found to exist. 
One who seeks to avoid his debts under the Bankruptcy Act 
must comply strictly with its provisions, and if he fails to 
apply for his discharge within the time limited, his right 
is lost to him forever. (180 Fed. 957; 7 C. J. 367.) 

A bankrupt may apply for a discharge at any time 
after the expiration of one month from the date of his 
adjudication and within twelve months subsequent thereto. 
(157 Fed. 675; 7 C. J. 323.) 

A discharge in bankruptcy is conclusive against any 
future liability of the bankrupt with respect to debts which 
the statute provides shall be released and as to his right 
to a discharge. (7 C. J. 395.) 

On close of bankruptcy proceedings, the property of 
the bankrupt undisposed of reverts to him or those entitled 
to his estate. (7 C. J. 417.) 

When bankrupt is discharged, title reverts to him, 
if property is not disposed of by trustee, but at all times 
bankrupt has an actual interest which becomes perfect when 
not needed to pay debts or if trustee is discharged without 
using it. Trustee takes title for a limited purpose to pay 



98 



creditors, and he is trustee for bankrupt of the surplus. 
Bankrupt can dispose of surplus by deed during pendency of 
case. (109 Pac. 696. ) 

Bankrupt has right to residue after debts proved 
and expenses paid. (25 Mich. 40.) 

On close of proceedings property undisposed of reverts 
to bankrupt. (95 S. W. 637 [Texas].) 

Property acquired after adjudication does not pass 
to the trustee (161 Fed. 815, 7 Cor. Jur. 132) ; nor does 
property acquired after filing petition but before adjudi- 
cation. (192 Fed. 834.) 

NO TRUSTEE APPOINTED; 

Where a bankrupt filed his petition in bankruptcy, 
but no trustee was ever appointed, and the estate was ad- 
ministered and the bankrupt discharged without disposition 
of his land, the title of the bankrupt to the land was never 
divested. (7 C. J. 417.) 

DEBTS NOT RELEASED BY DISCHARGE; 

The Federal Act of 1898 provides: 

A discharge in bankruptcy shall release a bankrupt 
from all his debts except such as: 

(1) Are due as a tax levied by the United 
States, the State, County, District or 
Municipality in which he resides ; 

(2) Are liable for obtaining property by 
false pretenses or false representa- 
tions, or for wilful and malicious in- 
juries to the person or property of 
another, or for alimony due or to be- 
come due, or for maintenance or support 
of wife or child, or for seduction of 
an unmarried female, or for criminal 
conversation ; 

(3) Have not been duly scheduled in time for 
proof and allowance, with the name of the 
creditor if known to the bankrupt, unless 
such creditor had notice or actual knowl- 
edge of the proceedings in bankruptcy; or 

(4) Were created by his fraud, embezzlement, mis- 
appropriation or defalcation while acting as 
an officer or in any fiduciary capacity. 












J . 


















99 



Another authority speaks as follows: 

"An unsatisfied judgment is a liability, and 
accordingly the debtor remains liable upon a 
judgment based upon fraud, false pretenses or 
false representations. The form of the action 
is immaterial, and all that is necessary is 
that the judgment should be based upon actual 
as distinguished from constructive fraud. It 
need not appear from the judgment itself that 
it was based upon fraud, but it is sufficient 
if this can be gathered from the entire record 
of the case ; but where the judgment recites 
that the cause of action was based upon an 
account, the judgment creditor cannot go be- 
hind the judgment, and prove that the trans- 
action out of which it arose was fraudulent, 
so as to avoid the effect of a discharge." 
(7 C. J. 400. ) 

And as to a mortgage: 

"The lien of a mortgage is not affected by the 
mortgagor's discharge in bankruptcy, although 
the discharge will prevent the rendition of 
any personal judgment for a deficiency on 
foreclosure." (7 C. J. 411.) 

HOMESTEAD AND JUDGMENTS 

Judgments docketed, had homestead filed, adjudica- 
tion, homestead exemption and discharge. The judgments remain 
a lien. (Smalley v. Langensur, 70 Pac. 786, 196 U. S. 94.) 

LIEN OF JUDGMENT 

The judgment from the time it is docketed becomes a 
lien upon all the real property of the judgment debtor not 
exempt from execution in the County, owned by him at that 
time, or which he may afterwards acquire until the lien 
ceases. * * * * (671 C. C. P.) 

The lien of the judgment acquired more than four 
months prior to the filing of the petition in bankruptcy is 
not affected by the discharge. (American Improvement Co. 
vs. Lilienthal, 29 Cal. App. Dec. 697; also Oilfields Syn- 
dicate vs. American Improvement Co., 256 Fed. 979.) 

The Bankruptcy Act provides: That all levies, judg- 
ments, attachments, or other liens, obtained thru legal pro- 
ceedings against a person who is insolvent, at any time with- 



100 



in four months prior to the filing of a petition in bank- 
ruptcy against him shall be deemed null and void in case 
he is adjudged a bankrupt, and the property affected by 
the levy, judgment, attachment or other lien shall be deemed 
wholly discharged and released from the same, and shall 
pass to the trustee as a part of the estate of the bank- 
rupt, * * * * Section 67f, Bankruptcy Act, 1898. 

"The question whether a judgment 
against one who is thereafter adjudged a 
bankrupt is thereby discharged, is prop- 
erly raised by pleading the discharge in a 
proceeding to enforce the judgment. Pre- 
sumably the court in which such discharge 
is thus pleaded will accord it due legal 
effect, and if it does not the bankrupt's 
remedy lies in a review of such action by 
the proper appellate tribunal, or ultimately 
in the Federal court for denial to him of 
a right under a law of the United States." 

Hellman v. Goldstone, 161 Fed. 913; 
Boggs v. Dunn, 160 Cal. 283; 
Brandenburg on Bankruptcy, 1573. 

The conclusion reached is that the discharge in 
bankruptcy is personal to the bankrupt and must be pleaded 
by him if he would have the benefit ; that the discharge 
does not affect the lien of the judgment but that it can be 
set up to prevent the enforcement of the lien of any judg- 
ment not falling within the excepted classes (such as a 
judgment for alimony). 

BANKRUPT IN REGARD TO LIENS: 



See case of Cohen v. Nixon & Wright, 236 Fed. 407, 
in which the court said: 

"Nixon & Wright has no right to exercise 
the power of sale contained in their security 
deed after their debtor had gone into bank- 
ruptcy without permission of the bankruptcy 
court. Everyone who takes a mortgage * 
takes it subject to the contingency that pro- 
ceedings in bankruptcy against his mortgagor 
may deprive him of the specific remedy which 
is provided for him in his contract." 

In re Jersey Island Packing, the court said: 

"It is true that the bankruptcy act pro- 
vides that liens, such as the lien holders 
had under the trust deeds in this case, shall 
not be affected by bankruptcy, but that is 



101 



far from saying that such lien holders may- 
after the commencement of proceedings in 
bankruptcy against the debtor, proceed to 
enforce their liens or contracts in the man- 
ner prescribed in the instruments which 
create them; and this is true whether such 
a lien is an ordinary mortgage, or deed of 
trust with provision for a strict foreclosure 
by a notice and sale. The provision of the 
Bankruptcy Act that such a lien shall not be 
affected by the bankruptcy proceedings has 
reference only to the validity of the lien- 
holder's contract." (138 Fed. 625.) 

Discharge in bankruptcy sufficient to bar judgment 
rendered during the pendency of the bankruptcy proceedings. 
(Sec. 758 Loveland, 110 Am. St. Rep. 382; 160 Cal. 283; 159 Cal, 
742; 30 L. Ed. Sup. Ct. 985.) 

ATTACHMENT ; 

Attachment levied more than four months prior to 
filing a petition in bankruptcy, but judgment rendered within 
the four months, the lien is not rendered void by the bank- 
ruptcy proceedings or adjudication, and title passes to the 
trustee subject to attachment lien. (Sec. 67f Bankruptcy 
Act of 1898. 187 U. S. 165.) 

ADJUDICATION IN OTHER STATES, PROPERTY HERE; 

Jurisdiction of court extends all over United States. 
(229 U. S. 254; 57 L. Ed. 1174.) 

A certified copy of the order approving the bond of 
a trustee shall constitute conclusive evidence of the vest- 
ing in him of the title to the property of the bankrupt, and 
if recorded shall impart the same notice that a deed from the 
bankrupt to the trustee, if recorded, would have imparted had 
not bankruptcy proceedings intervened. (Sec. 21e.) 

A certified copy of an order confirming or setting 
aside a composition, or granting or setting aside a discharge, 
not revoked, shall be evidence of the jurisdiction of the 
court, the regularity of the proceedings and of the fact that 
the order was made. (Sec. 21f . ) 

A certified copy of an order confirming a composi- 
tion shall constitute evidence of the revesting of the title 
of his property in the bankrupt, and if recorded, shall im- 
part the same notice that a deed from the trustee to the 
bankrupt, if recorded, would impart. (Sec. 21g. ) 

The trustee shall, within thirty days after the 



102 



adjudication, file a certified copy of the decree of 
adjudication in the office where conveyances of real property 
are recorded in every county where the bankrupt owns 
real estate not exempt from execution. (Sec. 47c.) 

The above is directory only. 

PROPERTY OUT OF THE UNITED STATES: 

The Bankruptcy Act passes no title to real estate 
situated in a foreign country, but the Act provides that: 

"The bankrupt shall execute to his 
trustee, transfer of all of his property 
in foreign countries." 



(End of subject) 



110 



COVENANTS, CONDITIONS and RESTRICTIONS 

The title man should learn to clearly distinguish 
between a covenant and a condition. Speaking in general 
terms, the liability for violation of a covenant results in 
a question of damages between the covenantor and the cove- 
nantee, while the effect of non-fulfillment of a condition 
works a forfeiture of the estate. It is not always possible 
to take the words "covenant" and "condition" as indicating 
which has been created in a conveyance. If the intention 
of the parties is so clearly expressed as to show that the 
enjoyment of the estate transferred was intended to depend 
upon the performance of a certain stipulation, a condition 
and not a covenant will result, but in case of doubt a cove- 
nant is favored rather than a condition. (107 Fed. 798; 79 
Am. St. Rep. 750.) And where the matter is in doubt construc- 
tion by a court will favor the free use of the land. (160 
Cal. 257 and 559. ) 

Conditions are of two kinds, conditions subsequent 
and conditions precedent. 

CONDITIONS SUBSEQUENT are those which refer to the 
happening of a future event in regard to the estate conveyed 
and render it liable to be defeated upon breach of the 
condition imposed (Hawley v. Kafitz, 148 Cal. 393; 1438 C. C), 
or where the estate transferred passes at once to the gran- 
tee subject to be divested from him upon the happening of 
some subsequent event. 

CONDITIONS PRECEDENT are those which must be performed 
or take place before the estate set out in the conveyance 
can vest(1436 C. C). The title does not pass out of the 
grantor until the condition on which it is predicated is per- 
formed. If the consideration for the conveyance is solely 
the performance of the condition set out, then it is a con- 
dition precedent. An agreement to convey is an instance of 
this. Where the language is not clear enough to decide the 
intent of the parties to the deed, courts will favor the 
creation of a condition subsequent rather than one precedent. 

A deed upon the condition that the grantee shall do 
certain things set out is a personal covenant rather than a 
condition. 

Certain conditions sometimes attempted to be imposed 
are void. A testamentary devise of land to the decedent's 
widow on the condition that she shall not remarry is unlawful, 
but if the devise was conditioned that she should lose the 
title if she remarried, the law interposes no objection be- 
cause this would be a grant until she remarried, which is 
lawful (710 C. C). Conditions restraining alienation are 
void (771 C. C), such as one forbidding the sale of the 



Ill 



land granted without the consent of the grantor (64 Cal. 363) 
or for a certain named price only (74 Cal. 141). The title 
passes but the condition is void as a condition subsequent, 
but if the conveyance is based upon a condition precedent 
that is impossible of fulfillment, the attempted grant it- 
self is void (98 Cal. 433), such as the performance of a con- 
dition that is forbidden by law. If the act to be performed 
is not wrong of itself but otherwise unlawful, title 
passes freed from the condition. Thus the grantor might 
make the condition the erection of a factory upon the land 
which the law forbade in that locality. The transfer holds 
good but the condition does not. 

IMPLIED COVENANTS : 

The use of the word "grant" in a conveyance, unless 
modified or restrained by other language in the deed, implies 
that the grantor has not conveyed the same estate to any other 
person and that it is free from encumbrances, made or suffered 
by the grantor or by anyone claiming under him (1113 C. C). 
These covenants, though not set out in the deed, may be sued on. 

COVENANTS REAL OR PERSONAL ; 

Real covenants are those which run with the land, 
are based upon mutuality of the benefits to accrue and inure 
to the use of and bind subsequent grantees. 

Personal covenants are binding upon the covenantor 
and his personal representatives. A covenant merely restrict- 
ing the use of the land is not a real covenant (136 Cal. 36), 
but a personal covenant may be enforced in equity against a 
subsequent grantee with notice if this notice be proved 
against him. 

The searcher in his daily practice is mostly con- 
cerned with what are known as "building conditions" such as 
are contained in deeds for lots in residential subdivisions 
and which vary in the language by which they are imposed 
from personal covenants carelessly expressed to real condi- 
tions binding the land with penalty of re-entry, forfeiture 
and reversion of title drawn in the light of recent court 
decisions and sufficient to effectuate their purpose. Or- 
dinarily the title man may list these in a brief sentence 
in his exceptions or list of encumbrances and protect his 
certificate or policy, and the legal construction of the 
same does not concern him. It may, however, become neces- 
sary to eliminate these restrictions to clear the property 
at times and to that end some knowledge of their effect and 
the rights of parties interested becomes essential. 

SEC. 1460 C_. C_. PROVIDES : 

"Certain covenants contained in grants 
of estates in real property are appurtenant 



112 



to such estates and pass with them so as 
to bind the assigns of the covenantee and 
to vest in the assigns of the covenantee 
in the same manner as if they had person- 
ally entered into them. Such covenants 
are said to run with the land. " 

SEC. 1462 C. C. PROVIDES : 

"Every covenant contained in a grant 
of an estate in real property which is made 
for the direct benefit of the property or 
some part of it then in existence runs with 
the land." (155 Cal. 683.) 

Notice that such covenants had to be created in the 
grant itself. Then in 1905 Sec. 1468 C. C. was adopted, 
which reads: 

"A covenant made by the owner of the 
land with the owner of other land to do 
or refrain from doing some act on his own 
land, which doing or refraining is expressed 
to be for the benefit of the land of 
the covenantee, and which is made by the 
covenantor expressly for his assigns or 
to the assigns of the covenantee, runs with 
both of such parcels of land." 

Then again as to this State the only covenants which 
run with the land are those specified in the code and those 
incidental thereto (1561 C. C). 

By the terms of Sec. 1468 C. C. two or more parcels 
of land may by mutual agreement entered into by the several 
owners thereof be restricted as to use, occupation, charac- 
ter or cost of improvements to be erected thereon, for the 
mutual benefit of the parties themselves, their heirs, suc- 
cessors and assigns, so as to create covenants that will run 
with the land. 

It is not necessary to give notice to a subsequent 
grantee or that reference be made in the deed to him of the 
covenant. The covenant as originally created is sufficient . 
(Quatman v. McCray, 128 Cal. 285.) 

While formerly considerable doubt existed as to the 
effect of what are known as tract restrictions imposed by 
the deeds to individual lots or parcels in a subdivision and 
the rights of the original owner of the tract and of the suc- 
cessive owners of the lots, we have been helped very materially 
by the clear-cut decision in the case of Werner v. Graham, 
rendered by Judge Olney, concurred in by Justices Shaw and 
Lawlor (181 Cal. 174). This far-reaching decision was upheld 



113 



by the Supreme Court in banc on May 15, 1923, in the case 
of McBride v. Freeman citation which expressed itself as 
satisfied with the conclusions therein stated as established 
rules of property. To so many cases where restrictions 
have been created is the Werner case applicable that it ap- 
pears well to quote from the syllabus the following: 

SERVITUDE IN FAVOR OF ONE PARCEL AND 
AGAINST ANOTHER— WHEN NOT CREATED: 



"Where the owner of a tract of land 
sells a portion of it, exacting of the 
grantee restrictive provisions as to its 
use, but without a word indicating that the 
land conveyed is a part of a larger tract, 
the balance of which grantor still retains, 
or that the restrictions are intended for 
the benefit of other lands, or that their 
benefit is to inure to or pass with other 
lands, and without any description or desig- 
nation of what is an essential element of 
any such servitude as claimed, namely, the 
land which is to be the dominant tenement, 
a servitude in favor of one parcel against 
the other is not created. " 

CREATION OF MUTUAL EQUITABLE SERVI TUDES— RULE— EXCEPTION : 

While it is the undoubted rule that when the owner 
of a subdivided tract conveys the various parcels in the tract 
by deeds containing appropriate language imposing restrictions 
on each parcel as part of a general plan of restrictions com- 
mon to all the parcels and designed for their mutual benefit, 
mutual equitable servitudes are thereby created in favor of 
each parcel as against all others, the rule is not applicable 
where there is not language in the deeds which refers to a 
common plan of restrictions or which expresses or in any way 
indicates an agreement between grantor and grantee that the 
lot conveyed is taken subject to any such plan. 

Applying this rule to everyday practice we should 
bear in mind where the original owner at subdivision deeds 
out his lots and in each deed imposes restrictions which are 
stated in clear language to embrace the whole tract as part 
of a plan for the improvement and benefit of said tract, 
each lot owner obtains certain rights against every other 
owner in the tract in regard to the upholding of the restric- 
tions and restraint upon the violation of the same. The lots 
to which these rights belong are termed the dominant tene- 
ments; the lots against which these rights may be exercised 
are termed the servient tenements. This applies to all the 
lots and thus each lot is a dominant tenement and a servient 
tenement at the same time. 



114 



Moreover, the first deed out disclosing the general 
plan creates the relationship and binds all other lots in 
the tract. It is not sufficient to post this first deed to 
the lot only which it conveys. It should be posted to the 
entire tract with some appropriate notation as to the rights 
it creates over the other lots because, altho all other lots 
remain vested in the original subdivider and policies or 
certificates so show the title, immediately upon its recorda- 
tion, notice is imparted of the rights obtained by the 
grantee and his successors in ownership of the lot deeded 
over the undeeded balance of the tract. The same reason- 
ing would apply to the case of a recorded agreement of 
sale containing restrictions cast in similar language as 
to a deed. 

Our courts had already decided in several cases 
(notably in 136 Cal. 36, 160 Cal. 569) that unless the com- 
mon grantor inserted recitals in his deed indicating that 
the restrictions should operate in favor of other land 
owned by him no equitable easement would be presumed to 
have been created. 

In the McBride case plaintiffs sought an injunc- 
tion to restrain the erection of a building in violation 
of conditions incorporated in each deed for lots in a tract 
by the original owner of the tract. The trial court declar- 
ed for defendants on the ground that no general plan of im- 
provement was indicated in the deeds imposing the restric- 
tions altho all lots may have been similarly restricted. 
The Appellate Court reversed the judgment and held that 
the Werner v. Graham case was limited only to the facts 
of that particular case and upheld the common law theory 
of "equitable easements" by which courts of equity have 
extended aid to persons other than those actually named 
in the covenants as a duty regardless of whether a strict- 
ly legal action could be sustained- As already said, the 
Supreme Court overruled the Appellate Court and sustained 
the Werner decision, so that we may now rely upon the record 
showing without the risk of ignoring latent equities. 

In the case of Currie v. Title Insurance and Trust 
Company (212 Pac. 409), it was decided that where the origi- 
nal owner gave a deed reciting it was "made and accepted 
upon the following conditions subsequent" setting out re- 
strictions and providing for reversion upon violation, since 
the deeds do not disclose that the lot conveyed was part of 
a larger tract and that the restrictions were for the benefit 
of other lands, said restrictions are conditions and not 
covenants and inure to the benefit of the grantor only. 
Further note carefully, that contractual obligations do 
not disappear as the result of a change in circumstances, 
but may do so thru voluntary transfer of said rights or 
additional agreements. 



115 



This is an instance of a case brought to have the 
restrictions removed from a lot by quieting title against 
the common owner of the subdivision who had given deeds 
to all lots in the tract imposing similar restrictions and 
because the property had so changed that it had become more 
valuable for business than for residence purposes. The 
trial court gave plaintiff his decree. The Appellate Court 
reversed it and upheld what is declared to be "express con- 
ditions subsequent" in the deed which by its language was 
held to constitute the final understanding of the parties, 
but, altho all deeds might be in similar terms, the grantee 
was no party to any general plan in the mind of the grantor 
and did not give his consent to any interchange of servi- 
tudes. Even if the "conditions" should be classed as cove- 
nants they must be held to create easements in gross and 
inure to the grantor, the defendant, and its assigns. 

C ONCRETE ILLUSTRATIONS 

Two examples will show the practical application 
of the rule. 

A deed recites : 

"This deed is given and accepted upon the 
express agreement of the second party to 
build upon said premises within six months 
a dwelling house to cost not less than 
$1500.00. Said agreement being considered 
by the parties hereto as part consideration 
for this conveyance." 

This language was held to constitute no more than 
a personal covenant (Hawley v. Kafitz, 148 Cal. 393, and cases 
cited) . 

Another deed contained the words: 

"This conveyance is made upon the following 
express condition, viz. : that any building 
to be used as a dwelling house erected 
upon these premises within two years shall 
cost not less than $1200.00." 

This was held sufficient to support a forfeiture 
upon a violation in Quatman v. McCray (128 Cal. 285). 

A deeds to B upon the agreement that B shall remain 
as a member of a certain church. B deeds to X with no quali- 
fications in the grant. X takes clear of the personal cove- 
nants between A and B. 

A conveys to B and makes the deed upon the condition 



116 



that B will support A during his lifetime. This is a person- 
al agreement between the parties. Whilst B owns the property 
he is bound, but if he deeds to a purchaser in good faith and 
for value, A cannot follow the property but must look to the 
proceeds. If, in the first instance, A had passed the title 
"so long as B remains a member of a certain church," and if, 
in the second instance, A had retained a lien on the land 
for his consideration, different results would obtain. The 
language of all such deeds must be carefully watched. 

NEGATIVE EASEMENTS : 

Deeds for lots in a tract containing restrictive 
covenants inuring to benefit of adjoining lots burden the 
lot conveyed and also create easements over adjoining lots 
which are "real property" interests. Recorded deeds give 
notice to grantees of later deeds of these easements. In 
foreclosing a mortgage made before subdivision and cover- 
ing unsold lots not released, owners of these easements 
should be made parties defendant or purchaser at foreclosure 
sale will take subject to the easements. (16 Cal. 580; Stanis- 
laus W. Co. v. Bachman, 152 Cal. 716.) 

Miles v. Hollingsworth, 187 Pac. 167, decided that 
grantee under such deed acquired a negative easement in 
every other lot in the tract. 

A restrictive clause in a deed prohibiting the 
erection and maintenance of buildings of a certain charac- 
ter on the land conveyed of less value than a specified 
amount, and providing for a forfeiture of the grantee's 
interest in the event of a violation thereof, is a condi- 
tion subsequent, the breach of which will defeat the gran- 
tee's title. (L. A. & Arizona Land Co. v. Marr, 62 Cal. Dec. 
385.) 

REVERTER AND RIGHT OF RE-ENTRY AS PROPERTY ; 

Is personal property at common law (Tiffany Real 
Prop. 1 Sec. 137) and contingent right of reversion was held 
to be not an estate in 113 Cal. 636, and 91 Cal. 146 (C. J. 
21 p. 1017). In California reverter is a "contingent future 
estate" (Pavcovich v. S. P. R. R. Co., 150 Cal. 39), the grantor re- 
tains an interest in the land which may be transferred (699 
C.C.). A reversion is residue of estate left in grantor or 
his successors. (768 C. C. ) 

Grantor in a deed may reserve a right of re-entry 
on breach of conditions subsequent to his assigns. This 
right is property capable of passing by will or transfer 
under Sec. 1046 and 699 C.C. See Johnston v. City of Los 
Angeles, 54 Cal. Dec. 549, and 176 Cal. 479. (See also as 
pertinent to this matter 141 Cal. 366, 169 Cal. 465, and 
167 Cal. 706.) It can be waived to the extent of a mort- 



117 



gage or in favor of a named person (Supreme Court of Geor- 
gia, Moss v. Chappell, 54 S. E. 968). A recorded waiver is 
good notice under 1213 and 1215 C. C. 

REVERSIONER ESTOPPED; 

Forfeiture upon violation is waived when original 
grantor deeds adjoining lots with no restrictions (Brown 
v. Wrightman, 5 Cal. App. 391). The plaintiff's rights 
were waived by his own acts. 

Original owner lost out because he inserted liquor 
clause to keep a monopoly for himself. (152 Cal. 376.) 

SOME DEFINITIONS; 

Private Residence Covenant that no building except 
a "private residence" be erected, prohibits an apartment 
house, flat or double house or any structure except that 
for one family only. (30 C. A. D. 604.) 

A two-family flat, one above and one below, with a 
common entry in front and rear, was held to violate the con- 
dition forbidding construction of an apartment house in the 
Virginia case of Elterich v. Leicht (107 S. E. 735). 

"Flats" or "Apartment House" includes any build- 
ing for the use of more than one family. A covenant pro- 
hibiting the erection of "any flat or tenement" was held 
to be made "to prevent the houses from being used by more 
than one family" in a Missouri case (155 S. W. 861). 

Steps are not a substantial part of a house (163 
Cal. 503). 

RACE CLAUSE IN DEED ; 

In case of L. A. Investment Co. v. Gary, 58 Cal. Dec. 
538, it was decided by the Supreme Court December 11, 1919, 
that restriction in a deed that no person "other than of 
Caucasian Race be permitted to occupy said lot" is valid. 
It is not in restraint of alienation but is in restraint 
of use only. The Court said "a condition that the proper- 
ty be not sold, leased or rented, to one not of Caucasian 
birth is clearly a restraint of alienation." 

FORMS FOR SETTING UP RESTRICTIONS: 



Where lot searched is vested in original tract owner 
who has made deeds for other lots in the tract disclosing a 
general plan of improvement. 

"Conditions and Restrictions contain- 
ed in deeds of record conveying other lots 



118 



in said subdivision disclosing a general 
plan for the improvement of said tract." 

Where the lot searched and other lots have been 
conveyed by deeds disclosing a general plan of improvement. 

"Conditions and Restrictions contained 
in the deed from (original subdivider) to 

dat ed recorded 

in Book page of deeds (or offi- 
cial records) and in deeds of record con- 
veying other lots in said subdivision es- 
tablishing a general plan for the improve- 
ment of said tract." 

Quite often a date is inserted in the deed for the 
termination of the restrictions, after which they shall be 
null and void. A violation during the prescribed period may 
have occurred. The reversioner does not lose his right to 
enforce forfeiture in such a case immediately upon the date 
set for the termination. He has five years in which to bring an 
action based upon his rights in real property. This liabili- 
ty may be covered by some such exception as: 

"Any rights that may have accrued to 
(creator of reversion) his successors or 
assigns by reason of any violation of the 
conditions or restrictions contained in the 

deed from to 

recorded in Book page of 

and enforceable 

within five years from date of ter- 
mination of said restrictions." 

This form can be adapted to cover any rights of others 
that have attached, but if the property has never been built 
on and is vacant, or if the improvements comply with the re- 
strictions imposed, may be omitted entirely. 

TO ELIMINATE RESTRICTIONS: 

It sometimes becomes necessary or desirable to can- 
cel the restrictions against property by reason of the change 
from residence to business or industrial possibilities, and 
then the question arises as to who are the parties from whom 
deeds must be secured to eliminate restrictions that have not 
expired. Not infrequently facts not disclosed by the records, 
such as failure by the neighbors to observe similar restric- 
tions, or the general character of the tract, or breaches by 
the persons who might enforce the restrictions, exist, which, 
if known, would warrant one in building according to one's 
own wishes notwithstanding, but to make a clean record only 



119 



two methods are available. One is to bring an action to 
cancel the restrictions, and the other is to get deeds from 
all the persons who, under the law, have any interest in the 
property for the enforcement of the restrictions, and those 
who have a right to enjoin a breach. Where there is a general 
plan of subdivision the right usually inures to all the owners 
in the tract ; this right may be found to be limited by the 
terms of the original deeds to the owners on the same street, 
or in the same block, or to adjoining owners, or to the own- 
ers or their assigns. 

FORM FOR TRANSFER OF REVERSIONARY INTEREST: 

Form for clause to be added to a deed to pass the 
said interest from the owner to a third party: 

"The purpose and intention of this deed 

is to transfer and assign to said 

all right, title and interest, present or 
future, vested or contingent in being or in 
expectancy now owned or hereafter acquired 
which in the deeds conveying said lots or 
any of them to the respective, parties named 

therein said , did retain or reserve 

under the provision expressed in said deeds 
that upon the breach of any of the condi- 
tions, restrictions, covenants therein set 
out, the premises described shall revert to 
the grantor, his successors and assigns with 
the right of immediate re-entry. " 

LAW OF ZONING: 

Of late years Zoning Ordinances have been introduced 
into many Western municipalities and affect the possession 
and occupation, if not the title, to property. A person buy- 
ing for business or industrial purposes should know if the 
property he wishes to purchase is "zoned" against such uses. 

DEFINED 

Zoning is an exercise of the police power. Under 
the exercise of this power no compensation is paid for the 
limitations imposed even if damage can be shown as in con- 
demnation under the power of eminent domain. The object of 
zoning has been described as the giving of direction and plan 
to the growth of a city. 

POLICE POWER 

Includes not only public health, morals and safety 



120 



but also, of late years, public convenience. The U. S. Supreme 
Court held in Noble State Bank v. Haskell (31 Sup. Ct. 186, 1911) 
that it extended to all great public needs. 

The fourteenth amendment does not curtail the police 
power when properly exercised. 

BUILDING OR SET-BACK LINE 

A set-back line for the sake of widening a particular 
street would undoubtedly call for condemnation proceedings 
but a building line as part of a comprehensive plan affect- 
ing all property in a large district is within the police 
power and has been held not to deny the equal protection of 
the law to those affected. (Barbier v. Connolly, 113 U. S. 
27, 1885). So long as the regulation is not unreasonable 
and operates uniformly on all persons similarly situated 
in the same district, there is no deprivation of property 
without due process of law. (Reinman v. Little Rock, 35 
U. S. Sp. Ct. 511, 1914.) 

A building line established upon a request of a 
majority of abutting property owners was held unconstitu- 
tional by the U. S. Supreme Court for the reason that power 
of this kind cannot be vested in any number of property 
owners. It was not in the interest of the general public 
comfort or convenience. (67 S. E. 376 Va. ) 

DIVISION OF CITY INTO DISTRICTS 

The ordinance dividing Los Angeles into residential 
and industrial districts with "residence exceptions" in the 
residence district, was upheld in Exparte Quong Wo (118 Pac. 
714). This and the Montgomery case (125 Pac. 1070), which was 
sustained by the U. S. Supreme Court, throw most light on 
zoning power and can be read with profit. 

As to ordinances requiring a frontage majority con- 
sent to the erection of billboards, see Cusack v. Chicago 
(108 N. E. 340). This was upheld on final appeal. 

Each ordinance must stand upon its own merits as to 
its legality and avoid being either arbitrary or discrimina- 
tory and must be reasonable. The measure of its force is 
usually to be found in the way it is drafted. 

(End of Subject) 



125 



CORPORATIONS 



DEFINED 

A corporation is a person, though not a natural 
person. (C. C. 14.) 

Corporations are either public or private. A pub- 
lic corporation is organized to govern a portion of the 
State, all others are private. (C. C. 284.) 

LAW GOVERNING 

Corporations existing before adoption of the Codes 
in 1872 are not affected by provisions of Civil Code unless 
they elect to continue their existence under Code provisions 
as provided by Section 287, C. C. (288 C. C.) 

"Act Concerning Corporations" as in effect at time 
of adoption of the Codes provided that corporations may 
have perpetual succession unless otherwise stated in the 
articles of incorporation. (Act approved April 22, 1850.) 

By Amendment (Section 179) approved March 7, 1859, 
and in force at time of adoption of Codes, court order of sale 
is necessary for religious, benevolent, etc., corporations to 
sell property. This Section provides procedure to obtain 
order. 

Prior to March 8, 1901, a foreign corporation had 
only to file a certificate designating a person residing 
in this State upon whom process might be served. 

Bearing on the above see Case "South Yuba W. & M. 
Co. vs. Delovico G. Rag, 80 Cal. 333" wherein the Court 
states that there is no provision or authority in the Statute 
at that time, by which foreign corporations are to file a 
copy of their Articles of Incorporation. 

Subsequent to March 8, 1901, such corporation had 
to file certified copies of its Articles of Incorporation or 
charter etc. creating it, duly certified by the Secretary of 
State or other officer authorized, and duly certified by the 
Secretary of State of this State, in the office of the County 
Clerk of this County. (Statutes 1901, page 108 and C. C. 409.; 

Subsequent to May 11, 1917, foreign corporations 
are governed by the corporation license act, and Sections 
405, 406, 408, 409 and 410 C.C. are repealed, their provi- 
sions being embodied in Section One of said Act. 

Under this Amendment foreign corporations must file 



126 



certified copies of the Articles, charter, statute or act 
under which they are organized, with the Secretary of State, 
and a certified copy thereof must be filed in the office 
of the County Clerk of the County in which they own real 
property and where their principal place of business is. 
This does not affect corporations authorized to do busi- 
ness prior to March 8, 1901. 

FILING ARTICLES OF INCORPORATION - DOMESTIC CORPORATIONS 
(Prior to July 28, 1921) 

Articles of Incorporation should be presented to the 
County Clerk in triplicate. He files one copy and certifies 
to the duplicate as being a copy of those filed in his office. 
The duplicate so certified and the triplicate are sent to the 
Secretary of State at Sacramento, who keeps one copy and 
returns the other showing his certificate and State Seal 
attached. The latter is then filed in the County Clerk's 
office to complete the records. (C. C. 295 et seq.) 

FILING ARTICLES OF INCORPORATION SINCE JULY 28, 1921. 

Articles are filed in the office of the Secretary 
of State first, and thereafter a certified copy thereof shall 
be filed in the office of the County Clerk of any County in 
which the corporation owns property. No corporation shall 
be authorized to transact business until such certified ar- 
ticles are filed with the County Clerk of the County in 
which the principal place of business is to be transacted. 
(Sections 296-299, C. C. ) 

DE FACTO CORPORATIONS 

Where persons associate themselves together for 
religious purposes and attempt to form themselves into a 
corporation for such purposes, and upward of 16 years in 
good faith carry on the business for which it was organized 
or attempted to be organized, they constitute a corporation 
de facto notwithstanding there were defects in the corpora- 
tion proceedings, etc. (Los Angeles Holiness Bank vs. 
Spires et al. , 126 Cal. 541.) 

A corporation de facto may legally do and perform 
every act and thing which the same entity could do or per- 
form were it a de jure corporation. As to all the world ex- 
cept the paramount authority under which it acts and from 
which it receives its charter, it occupies the same position 
as though in all respects valid, and even as against the 
State, except in direct proceedings to arrest its usurpa- 
tion of power. (First B. Church vs. Branham, 90 Cal. 22). 

EXECUTION OF INSTRUMENTS BY CORPORATION 

The name of the corporation must be signed and the 
corporate seal affixed thereto, and be acknowledged accord- 



127 



ing to the special form for corporations. 

The President is the executive officer and when an 
instrument is signed by other than the president, there 
should be embodied in said instrument, or otherwise of 
record, a resolution authorizing the act. 

Where the seal of the corporation is affixed to an 
instrument purporting to be executed by it, and the signa- 
tures of the proper officers are attached and the instrument 
is proved, courts will presume that the officers did not 
exceed their authority, and the seal itself is prima facie 
evidence that it was affixed by proper authority. 52 Cal. 
193. (Cited 70 Cal. 146, 77 Cal. 290, 84 Cal. 566, 93 
Cal. 314; 94 Cal. 549; 100 Cal. 74). 

Secretary of Corporation is proper party to affix 
corporate seal and party denying execution must prove want 
of authority to so affix it. (93 Cal. 301.) 

Religious corporations equally with others must 
have a seal. 

A deed without corporate seal, purporting to have 
been executed on behalf of a corporation by its Board of 
Trustees, is not admissible in evidence without first show- 
ing their authority to execute the same. (33 Cal. 11). 
The recital of such authority in the deed is not evidence 
of its existence. 

Absence of seal or of proof of facts can only be 
established by resolution in proper book of trustees. (52 
Cal. 192). 

The misnomer of a corporation grantee in a written 
instrument will not invalidate it if it appears from the 
instrument what corporation was intended. (See 357 C.C. 
and 154 Cal. 119, 93 Cal. 301, 39 Cal. 514). 

A foreign corporation must make designation of an 
agent upon whom service may be made in an action and must 
file same with the Secretary of State. Prior to July 27, 
1917, under 405 C. C. upon default thereof, service could 
be made upon the Secretary of State. As the law now stands 
a corporation failing to comply can neither maintain nor 
defend an action in a State court concerning its property 
in this State, nor acquire or convey any title thereto. 
(See Stat. 1921, p. 638). This law was upheld in People 
vs. Alaska P. S. S. Co. (182 Cal. 206). 

An invalid act of the directors cannot be ratified 
by the stockholders. (62 Pac. 552, 130 Cal. 345). A special 
meeting without notice is invalid (109 Cal. 1). Power to 



128 



borrow money will always be implied unless restricted, but 
a bond issue can be made only by compliance with the spe- 
cific code provisions. A stockholders meeting cannot be 
held out of the State. Under Sec. 362 C.C. a corporation 
may shorten its existence by amending its articles, even 
if that results in immediately ending its corporate life. 
Other methods of dissolution do not prevent this construc- 
tion of the code. (165 Cal. 19). 

Cemetery corporations, like benevolent and reli- 
gious corporations, must obtain an order of court to sell 
real property. (615 C.C.) 

Colleges and seminaries of learning organized 
under Sec. 649, C. C. , can deed without a court order. Though 
a church corporation cannot buy property and give a pur- 
chase money mortgage back without an order of court, it 
can purchase subject to a mortgage already a lien on the 
property. 

DEED BY CORPORATION TO ITS OFFICERS 

A deed from a corporation by its officers as 
grantor to one of those officers as grantee, does not 
make a good record transfer because persons acting in a 
fiduciary capacity are forbidden to deal with themselves 
as individuals. The imperfection is cured if the deed 
is shown to be supported by a resolution of Directors 
properly passed by a quorum. (97 Cal. 343, 55 Cal. 359, 
151 Cal. 728). 

PARTITION OF ASSETS ILLEGAL 

Sec. 309, C. C. (prior to amendment of July 27, 1917), 
forbade a division of assets among stockholders except as 
to corporations organized to deal in real estate which could 
divide the assets with consent of two-thirds of the stock- 
holders, but the deeds to accomplish this are subject to the 
debts of the corporation. In Freeman v. Glenn (28 Cal. Apel. 
967) , the principle was upheld that such partition is for- 
bidden by civil and criminal law. 

Under 309 C. C. as amended in 1917, a corporation 
cannot divide up the assets if a contract of sale is out- 
standing or any liability unpaid. Supreme Court in Talcott 
Land Company vs. Hershiser on 1-27-21 in 61 Cal. Dec. 121. 

An instrument conveying the assets to a trustee 
for collection and distribution among the stockholders 
while valid as to collection of notes due, etc. was held 
otherwise void in Hedges v. Frank (174 Cal. 552). 



129 



Where a corporation deeds its property to an in- 
dividual to make partition deeds later and dissolves or be- 
comes defunct, said grantee holds the legal title in trust 
for the stockholders and creditors and a deed from the 
trustees under Sec. 400, C. C. , is necessary to pass a good 
title. 

An agreement between the owners of all the stock 
to sell the assets and divide the proceeds, violates 309 
C. C. (Burne v. Lee, 156 Cal. 221). 

CORPORATION LICENSE TAX: 

The first corporation license tax act was approved 
March 20, 1905. It was repealed June 10, 1913, the repeal 
to take effect June 30, 1914. 

The act provided that every domestic corporation 
and foreign corporations doing business in the State (ex- 
cept educational, religious, scientific and charitable cor- 
porations and those not organized for profit) shall pay an 
annual license tax between the first Monday in July, and 
the first Monday in August of every year. For failure to 
pay, domestic corporations forfeited their right to do 
business in the State. The Secretary of State was re- 
quired to report to the Governor on the first Monday in 
October all corporations which have not paid the tax and 
the Governor shall issue his proclamation declaring for- 
feiture unless the tax is paid within 60 days. 

This tax was not made a lien on real property, 
but forfeiture must be watched as affecting the right to 
acquire, hold and convey property. 

Under this act there are nine annual lists of for- 
feitures filed in the County Clerk's office for the years 
1905 to 1913 inclusive. 

The second CORPORATION LICENSE TAX ACT was enacted 
and approved May 10, 1915. (Stat. 1915, p. 422.) 

This tax also is not a lien on real property. The 
act provides that every domestic corporation (except educa- 
tional, scientific and religious corporations, those not 
organized for profit and those doing solely an interstate 
business, also public utility, insurance and banking cor- 
porations) and foreign corporations doing business in this 
State shall pay an annual license tax. The first tax was 
due January 1, 1916. Taxes became delinquent the first 
Monday in February. The charter of domestic corporations 
and the right to do business of foreign corporations was 
forfeited at 6 p. m. on the Saturday next before the first 
Monday in March for nonpayment. Under this act lists of 



130 



forfeitures occurring March 4, 1916, and March 3, 1917, are 
filed in the County Clerk's office. 

The CORPORATION LICENSE TAX ACT OF 1917 (the third 
act) came into effect May 11, 1917. It covers the calendar 
year from January 1st to December 31st, the first tax being 
due January 1, 1918, and is payable in one sum. 

This tax is a lien upon all property owned by a cor- 
poration on January 1st each year and remains a lien until 
paid. If not paid by 6 p. m. on the first Monday in February, 
it becomes delinquent and $10.00 penalty is added. 

At 6 p. m. on Saturday next before the first Monday 
in March each year if the tax is unpaid the corporate powers 
of domestic corporations are SUSPENDED (not forfeited as 
heretofore) and foreign corporations forfeit their right 
to do business in the State. 

The exercise of corporate powers is declared in- 
effective for any purpose upon suspension except to execute 
deeds in fulfillment of prior contracts (note the difference 
between this and franchise tax delinquency) and to defend 
actions in court. 

The following corporations are exempt from this tax: 

Educational, religious, scientific, charitable, 
those not organized or conducted for profit, foreign cor- 
porations doing solely interstate business and corporations 
which are taxed under constitutional amendment No. 1, which 
includes public utility, insurance and banking corporations 
(but not incorporated water companies). 

Building and Loan Associations are subject to both 
license and franchise taxes. 

Section 1 of this act sets out the method by which a 
foreign corporation may do business in California, and pro- 
vides that a corporation failing to comply can neither main- 
tain or defend any action in the state courts nor acquire or 
convey any legal title to real property within the State. 

Foreign corporations not complying with California 
laws can neither "acquire nor convey" title to land. Up- 
held in People vs. Alaska P. S. Co., 182 Cal. 206. Statute 
was amended in 1923 (Stat. 1923, p. 1036), removing this 
prohibition, but a deed from a corporation not so comply- 
ing would not give a good record title. Contra Reed vs. 
Todd7 "25 So. Dak. 421, 127 N. W. 527. In Fritts vs. Palmer, 
132 U. S. 282 (33 L. Ed. 317) Supreme Court decided that if 
the Legislature has intended that "No title should pass 
under a conveyance" that intention would have been clearly 
manifested. 



131 



Deeds to or from foreign corporations should not be 
passed as good until it has been ascertained that such cor- 
porations are in good standing under the act, and also in 
state of organization. 

Under the amendments of 1921 (Stat. 1921, p. 640) a 
fine is imposed for noncompliance and contracts by foreign 
corporations are declared void but enforceable against them. 

The license tax is payable to the Secretary of State 
and is measured by the capitalization of the company. 



RIGHT TO ACQUIRE OR CONVEY 

Under similar laws in other states it has been held 
that a deed to a foreign corporation doing business in the 
state conveys good title subject only to the right of the 
state to attack same. Hanna vs. Kelsey R. Co., 37 L. R. A. 
(N. S.) 355. See, also, Reed vs. Todd (25 So. Dak. 421), 127 
N. W. 527. In Fritts vs. Palmer, 132 U. S. 282 (33 L. Ed. 317; 
the Supreme Court decided that if the legislature had in- 
tended that "no title should pass under a conveyance" that 
intention would have been clearly manifested. 

The State, but not an individual, may raise the 
question as to whether or not a corporation is exceeding 
its authority (14 Cal. 543, 22 Cal . 621). 



CORPORATION FRANCHISE TAX 



This tax is levied by the State Board of Equaliza- 
tion and is payable to the State Controller. 

The first franchise tax act enacted was approved 
April 1, 1911 (Stat. 1911, p. 530). It covers the property 
of a corporation and its franchise which includes the right 
to be a corporation and to do business. 

This tax is a lien on all property owned by a cor- 
poration on the first Monday in March of each year and covers 
the fiscal year thereafter from July 1st to the following 
June 30th. 

The tax is all payable on the 1st Monday in July and 
the first half becomes delinquent six Mondays later carrying 
a penalty of 15% if unpaid. 

The second half is payable without penalty up to the 
first Monday in February when 5% penalty is added to all un- 
paid amounts. 



132 



If unpaid in full on Saturday before the first 
Monday in March domestic corporations forfeit their char- 
ters and foreign corporations their right to do business 
in the State. 

Under this act the following lists of forfeitures 
are filed in the County Clerk's office: 

1911 forfeiture occurred Mar. 2, 1912 



1912 
1913 
1914 
1915 
1916 

AS AMENDED IN 1917 



Mar. 1, 1913 

Feb. 28, 1914 

Feb. 27, 1915 

Mar. 4, 1916 

Mar. 4, 1917 



The amendment became effective May 11, 1917. (See 
Sec. 3664 et seq. , Pol. Code.) 

This amendment brings the act in harmony with the 
Corporation License Act changing the penalty for nonpay- 
ment to SUSPENSION of corporate powers as to domestic cor- 
porations with the sole exception that they may defend an 
action in court. The right of foreign corporations to do 
intrastate business is forfeited. 

There is no specific exemption in the Franchise 
Tax Act as to church property, but the State Board of Equali- 
zation has omitted to tax the franchises of churches because 
such institutions are usually exempted from taxation under 
general State laws. 

REVIVOR OF CORPORATIONS 



Revivors for license tax forfeitures prior to 1909 
are invalid. The Act of 1905 made provision for reinstate- 
ment, but at that time the State Constitution, Article XII, 
Section 7, forbade the legislature to remit the forfeiture 
of a corporation charter, but in face of this the special 
session of 1906 enacted that a defunct corporation could 
pay back taxes and thereupon be relieved from the forfeiture. 

The provision was unconstitutional, and to remedy 
this the general election of November 3, 1908, amended the 
Constitution in this respect so that the prohibition of re- 
vival only extended to any quasi-public corporation (Mulford 
Co. vs. Curry, 163 Cal. 276). 

The legislature then in 1909 passed a new permis- 
sion for corporations to pay up anc be relieved from for- 
feiture which was approved March 19, 1909, and it therefore 
follows that revivals prior to that date are invalid as 



- 









133 



being prohibited by the State Constitution. (See 155 Cal. 
638, 156 Cal. 93 and 156 Cal. 101.) 

Upon repealing this act the reinstatement of de- 
funct corporations was provided for. 

The License Tax Act of 1917, Section 12, provides 
that upon payment of all taxes, the State Controller shall 
issue a certificate evidencing payment and restoration, 
which when recorded in any County Recorder's office shall 
constitute a release of all existing tax liens upon the 
property of the corporation. County Recorder to keep an 
index of same. On presentation of said certificate of 
revivor to any County Clerk, said officer shall make a 
record thereof in his office in a book kept for such pur- 
pose, which record is evidence of the restoration, un- 
less a fresh suspension of corporate powers has occurred 
since issuing said revivor. 

The franchise tax as amended in 1917 provides for 
a certificate of revivor similar to the above. Recording 
in any County Recorder's office constitutes a release of 
all taxes upon the property of the corporation, and the 
County Recorder must keep an index of said certificates. 
The same provision as to presentation to any County Clerk 
is provided as in the case of the license tax. See Sec- 
tion 3669c, Pol. Code. 

The words "DO NOT RECORD" on the back of certifi- 
cate of revivor are simply an instruction to the Recorder 
not to copy into the record the section of the Political 
Code printed on the back of the certificate for the guid- 
ance of persons interested, nothing more. 

The Amendment of 1919, in effect July 22, 1920, as 
to the franchise tax amends Section 3669c of Pol. Code and 
provides for revivor by paying all taxes in arrears as for- 
merly, together with a sum equal to the last assessment for 
each year to time of revivor. Both license and franchise 
taxes to date must be paid. 

When suit has been commenced to enforce payment, 
costs on filing papers accrue, $7.00. When service is made 
of complaint and summons add $1.00. These amounts are added 
to taxes and penalties on revivor and on dismissing suit 
the $7.00 is turned over to the County Clerk and the $1.00 
into a special fund kept by the Attorney General. No 
special receipt is issued for this $8.00 on revivor. 

When it becomes necessary to revive a corporation 
if suspension is for franchise tax only, write to the State 
Controller. If it is on account of license only or of both 
franchise and license, write to the Secretary of State for 
amounts payable to effect the reinstatement, asking for the 



134 



necessary forms for affidavit and application. These must 
be signed and returned with amounts due as called for. 
Check should be made payable to the State Treasurer, sent 
to the Controller with letter of explanation, and asking 
for certificate of revivor. 

No provision seems to have been made for the re- 
vivor of a delinquent public utility corporation, nor is 
any decision available covering the question. 



SUSPENSION OR FORFEITURE 

One is suspended animation, the other is death. 
(Ramsore v. Sup. Ct., 205 Pac. 446.) 

It is especially necessary to remember the date, 
May 11, 1917, when the present License Act came into ef- 
fect and the Franchise Tax Law was brought into line with 
it. Prior to that date corporations in default became de- 
funct. Title vested in the stockholders as tenants in com- 
mon and under Sec. 400, C. C. , the directors last in office 
became managers of the affairs of the corporation with full 
power to settle the same as trustees for the creditors and 
stockholders. (Rossi v. Caire, 52 Cal. Dec. 701, and Aalwyns 
v. Martin, 159 Pac. 158; also 101 Cal. 135, 22 Cal. App. 
271, 156 Cal. 221, and 173 Cal. 25.) 

After May 11, 1917, the corporation maintained its 
legal existence, but its powers (with the exceptions noted) 
are entirely suspended. There are no trustees to represent 
it, its officers have their hands tied and can perform no 
official act on behalf of the corporation under disability. 



REVIVOR 

Restores old corporation to its former property 
rights that it had prior to its dissolution. Is not a new 
corporate existence. (Talcott Land Company v. Hershiser, 
61 Cal. Dec. 121.) 

DEED TO DEFUNCT CORPORATION 

No title passes when corporation is defunct, as there 
is no grantee capable of taking title. (150 Cal. 575; 166 Cal, 
322; 130 Cal. 27. ) 

No title passes immediately when corporation is sus- 
pended because there is nobody who can accept delivery on be- 
half of the grantee. If the corporation is revived the deed 
can be recorded (or rerecorded if already filed) with pre- 
sumption of delivery. (Ransome v. Court, 63 Cal. Dec. 346.) 



135 



DEED BY DEFUNCT CORPORATION ; 

Deed executed in name of corporation after for- 
feiture or dissolution and of record for five years has 
same effect as if executed prior thereto. (Stats. 1921, p. 574.) 

This legislative attempt to give life to a deed 
void ab initio is of doubtful validity and should not be 
relied on in practice by title men. 

A deed made by a domestic corporation after for- 
feiture is void if made as a corporate act and revivor does 
not make the deed good, except where, under the License Act, 
it is made pursuant to a contract antedating the forfeiture. 
(166 Cal. 557, 160 Cal. 644, 141 Pac. 566.) 

Where sale was made and consideration passed prior 
to forfeiture it is not necessary to obtain any order of 
court to authorize a deed by the trustees. 



ALL TRUSTEES MUST ACT: 

The powers of directors of a defunct corporation as 
trustees must be exercised by united action of all of them. 
(60 Cal. Dec. 79.) 

IDENTITY OF TRUSTEES: 

Prior to July 29, 1921, a court had no jurisdiction 
to determine who were the directors of a defunct corporation 
to act as trustees under 400 C. C. (101 Cal. 135, 85 Cal. 380.) 

On said date Sec. 402 was added to the Civil Code 
which provides a short court proceeding for such determina- 
tion. 

Appointment of trustees other than the directors 
last in office requires an independent proceeding. (29 Cal. 
App. 451.) 

SERVICE ON DEFUNCT CORPORATION: 

Under 400, C. C. , all trustees must be served and any 
vacancy must be filled by court appointment. (191 Pac. 539.) 
There could be no binding adjudication on the property unless 
all trustees were before the court. (180 Cal. 275.) 



RELIEF FROM LIEN WITHOUT REVIVOR: 

The State Controller holds this is of doubtful effect, 



136 



but U. S. Webb, Attorney-General, on Sept. 30, 1919, ren- 
dered his opinion that taxes constituted a lien until paid 
on property sold for payment thereof under 3668c, Pol. Code, 
and Section 10 of the License Act made taxes a lien "until 
paid" and that payment of amount due will therefore remove 
the lien. 



DISSOLUTION, STATUTORY; 

Jurisdiction to decree dissolution must appear on 
face of the record because it is acquired solely under the 
statute and is unknown in common law or equity. Thus the 
License Tax Act of 1917 declares that no court has juris- 
diction to decree dissolution until all taxes due under the 
act have been paid. The court must therefore make a finding 
to this effect. (66 Cal. 374, 34 C. A. D. 534, 131 Cal. 109, 
145 Cal. 54.) A corporation on "forfeited list" cannot ap- 
ply for dissolution until revived. (205 Pac. 446.) 

DISSOLUTION, TRUSTEES ' POWERS : 

When a decree is rendered for dissolution, the court 
has exhausted its authority. It cannot in same action ap- 
point trustees or receiver. Trustees take their power under 
400 C. C. (See Havemeyer Case, 84 Cal. 327.) Trustees cannot 
distribute the assets to stockholders, for title vests in 
them on dissolution subject to statutory powers of trustees. 
Trustees might execute instrument reciting dissolution, 
that affairs are settled, recite names of stockholders and 
stock owned by each and deliver possession to them pro rata. 



ANNUITY GRANT; 

Charitable, religious, benevolent, educational cor- 
porations or institutions, in active operation ten years, 
when authorized by insurance commissioner may receive grants 
of property conditioned on paying annuity to grantor or his 
designee. (594^, Pol. Code Amdt. 1919, p. 823.) 



RELIGIOUS CORPORATIONS, MUST HAVE ORDER TO SELL: 

When holding in trust for their missions are nowhere 
exempted from requirements of 598, C. C. Such corporations 
must obtain order of court to effect valid sale. (Giffen 
v. Christ's Church, 191 Pac. 718.) 



RELIGIOUS CORPORATIONS, CAN LEASE 



No transaction is valid except under 598, C. C. (191 



137 



Pac. 718), which allows "aliening". "Alienation" includes 
an oil lease (Eldred vs. Okmulgee, 98 Pac. 929). See, also, 
183 Pac. 470, and 181 Cal. 680. 

A lease is an encumbrance (6 Cal. App. 646). 

UNINCORPORATED BENEVOLENT OR FRATERNAL SOCIETIES: 

May operate without incorporating under Act No. 4208, 
approved April 24, 1911 (see General Laws). They may purchase, 
sell, mortgage and manage real or other property necessary for 
the objects of the association subject to its regulations, but 
all conveyances must be executed by the presiding officer and 
recording secretary under seal after resolution duly adopted. 

STATE REGULATION OF NATIONAL BANKS : 

In the case of State of California vs. Anglo and 
London Paris National Bank it was sought to escheat to the 
State certain money deposited 20 years ago and not withdrawn. 
It was contended that the State had no power to regulate 
national banks. The District Court of Appeal held that the 
escheat inured to the State and not the United States. 
(Dec, 1920.) 

WAR FINANCE CORPORATION ACT; 

Approved April 5, 1918, created a corporation with 
capital of half a billion to advance to banks and others to 
assist war industries, under control of a "Capital Issues 
Committee" of 7 members, 3 being members of Federal Reserve 
Board, empowered to investigate and determine whether it is 
compatible with national interest that any issue of securi- 
ties shall be offered for sale when in excess of $100,000. 

BANKS , CONSOLIDATION: 

Articles of incorporation and consolidation with ap- 
proval of superintendent of banks and confirmation by stock- 
holders must be filed with Secretary of State, and then with 
County Clerk. (Stats. 1921, p. 181.) 

FOREIGN CORPORATION AS TRUSTEE UNDER WILL: 

In re Estate of Wollings (66 Cal. Dec. 641, Dec. 11, 
1923) The Michigan Trust Co., a foreign corporation, was de- 
nied distribution of the estate as trustee with full power 
over real estate in California, because it would then be 
Going business under Sec. 7 of the Bank Act. Under our Con- 
stitution a foreign corporation cannot do business here un- 
der more favorable terms than a domestic corporation. 



(End of Subject. ) 



145 



4 



DEEDS 

DEFINED : 

Common law defines "a deed" as a writing sealed and 
delivered by the parties, and "a conveyance" as a deed which 
passes title to land from one person to another. 

TRANSFER; 

"Transfer" is an act of the parties, or of the law, 
by which the title to property is conveyed from one living 
person to another. (1039, C. C.) 

GRANT: 



A transfer in writing is called a grant or convey- 
ance or bill of sale. (1053, C. C.) 

STATUTORY FORM OF GRANT: 

The statutory (or short form of grant) runs: 

"I, A. B. grant to C. D. all that real 
property situate 

(Insert description.) 

Witness my hand this day of 

19 " 

This is sufficient in form to pass the title. 
(1092, C. C.) 

IMPLIED COVENANTS : 

The use of the word "grant" in a deed implies that 
the grantor has not already conveyed to any other person 
and that the estate conveyed is free of encumbrances made 
or suffered by the grantor (1113, C. C). Good conveyancing 
calls for the inclusion in a deed of the encumbrances sub- 
ject to which the transfer is made. 

SEAL UNNECESSARY: 



All distinctions between sealed and unsealed in- 
struments are abolished. (1629, C. C.) 

CONSIDERATION PRESUMED: 



A written instrument is presumptive evidence of a 
consideration. (1614, C. C.) "A good and sufficient con- 
sideration for a written contract" is presumed also under 
1963, C. C. 



146 



INCIDENTS INCLUDED: 



The transfer of a thing also transfers all its in- 
cidents unless expressly excepted. (1084 C. C.) 



DEED CARRIES STREET AFTER VACATION: 

Reference to map reads same into deed to indicate 
intention of parties as to property granted and if map shows 
no vacation, street is presumed to exist for purposes of 
deed. (See Anderson vs. Citizens Savings & Trust Co. De- 
cision 3-28-21. ) 



DEED OF LEASED LANDS CARRIES RENTS: 

A deed of land subject to a lease carries the 
right to collect the rents as an incident to the grant. 
The grantee is subrogated to the rights of the lessor. 
(McDonough vs. Starbird, 105 Cal. 15.) 



DELIVERY ESSENTIAL: 

A grant takes effect only upon its delivery. (1054 
C. C.) 

DELIVERY PRESUMED: 



A grant duly executed is presumed to have been de- 
livered at its date. (1055 C. C.) 

DELIVERY MUST BE ABSOLUTE: 

A grant cannot be delivered conditionally. Delivery 
is necessarily absolute and discharged of any condition im- 
posed. (1056 C. C. ) 

RETURN TO GRANTOR INOPERATIVE: 

Redelivering a grant to the grantor, or canceling 
it, does not operate to retransfer the title. (1058 C. C. ) 

DELIVERY IN ESCROW: 



A grant may be deposited with a third person to be 
delivered on performance of a condition, and on delivery it 
will take effect. While in possession of the third person 
it is called an escrow. (1057 C. C.) See "Escrows." 

Deed delivered to a third person with instructions 
to deliver it to grantor upon death of grantor. Held that 



147 



title passes at once to grantee, the grantor retains a life 
interest and depositary holds as trustee for grantee. (174 
Cal. 205.) Inheritance tax law in force at delivery to 
depositary applies. 

One accepting a deed from original grantor with 
knowledge of the deed in escrow, takes subject to it. (72 
Cal. 133.) 

Delivery to the third party must be absolute and 
beyond control by the grantor, and on the second delivery by 
the escrowee, the deed takes effect as of the date of its 
original deposit. (1059 C. C.) 

DEED TO TAKE EFFECT AT DEATH VOID: 



See 167 Cal. 570. The State Appellate Courts have 
uniformly held that a deed testamentary in character is in- 
effective to pass title. If a present interest passes, the 
deed is good even if power to revoke the deed is reserved. 
(109 Cal. 323.) 

PRESUMPTION OF DELIVERY AT DATE : 

Although an unrecorded instrument is valid between 
the parties and those who have actual notice of it, every 
conveyance of real property (except a lease for less than 
one year) is void as against a subsequent purchaser or 
mortgagee acting in good faith and for value whose convey- 
ance is first recorded. (1214, 1217 and 1107 C. C.) 

But under the provisions of Sec. 1055, C. C. , that a 
deed is presumed to be delivered at its date, the first 
dated but subsequently recorded conveyance would take prior- 
ity. So good faith, innocence of notice and valuable con- 
sideration must be proved affirmatively before the first 
recorded deed can prevail. (Beattie v. Crewdson, 124 Cal. 
577. See, also, 96 Cal. 298.) The burden of proof is on the 
subsequent purchaser. One who purchases real estate is 
chargeable with notice of any occupant's title thereof 
(85 Cal. 270), and if he had notice, actual or construc- 
tive, before payment of the money, he is not a bona fide 
purchaser (65 Cal. 163) and must prove he had no notice. 
(98 Cal. 409. ) 

RESTRAINT ON ALIENATION: 



Conditions restraining alienation, when repugnant 
to the interest created, are void (711 C. C). 

EXAMPLE : 

A deeds to B and states that grantee shall not 
convey or encumber. The prohibition is void. But A deeds 



148 



to B who shall not convey or encumber and on death of B 
property goes to remainderman. In this case B takes a 
life estate, but cannot touch the fee. See Estate of 
Caruthers (161 Cal. 588). Remainder went to A or if he 
died first then to "the heirs of B". In the latter con- 
tingency those heirs (who take as purchasers) take as a 
class and their identity is to be determined in an equity 
and not in a probate proceeding. (171 Cal. 637.) 

AFTER ACQUIRED TITLE PASSES; 

A grant deed passes after acquired title. (1105 C. C.) 

A recital in a quitclaim deed that it shall con- 
vey all after acquired title is of no effect if grantor had 
no title when deed was made. (94 Cal. 227.) A quitclaim 
deed is defeated by an unrecorded grant deed subsequently 
recorded. 

DEED OF ALL PROPERTY OWNED OR AFTE R ACQUIRED, NO SPECIFIC 
DESCRIPTION: 

Is valid as to property owned by grantor at its 
date. (63 Cal. 396.) It does not convey the legal title 
of after acquired property (Sees. 700, 703, 1045, C. C), of 
which the grantor might possibly become the owner. (Bridge 
v. Kedon, 163 Cal. 493.) But if made for a good considera- 
tion it might be enforced in equity as an agreement to con- 
vey or as estoppel. (700 C. C.)-an expectancy is not an 
interest in property. (1045 C. C. )-a possibility cannot 
be transferred. 

NAMES (IRREGULARITIES AND DISCREPANCIES) ; 

If the grantor is properly named in body of deed 
and in the acknowledgment, the deed is not invalid because 
he signs by a wrong name. Edward Jones, record owner, deed- 
ed but signed as Edmund. Edward Jones acknowledged the exe- 
cution. Held sufficient in 25 Cal. 76. 

A deed from Robert P. McClintock acknowledged 
the same way, but signed R. Parker McClintock was held good 
in Texas. The law recognizes but one given name. There- 
fore, an error in the middle name or its initial, or its 
entire omission, cannot affect the validity of a deed. 
(Devlin on Deeds.) So initials may be used in the signa- 
ture if the deed and the acknowledgment described the grantor 
correctly. (Idem.) 

A deed to "A, administrator of the Estate of B", 
vests the legal title in "A". The qualification is descrip- 
tive only (32 Cal. 203) and his individual deed will pass 
title. (See, also, 58 Cal. 257.) In actual practice it is 



149 



not advisable to follow this rule. The property is equi- 
tably an asset of B's estate and both legal and equitable 
titles should be brought down to a common ownership. 

In practice, where a deed is found to William H. 
Smith, as grantee, do not pass a subsequent deed from W. 
Henry Smith, or W. H. Smith, unless the acknowledgment proves 
the identity or an affidavit is procured and recorded. A 
deed from William Smith is good to pass title acquired by 
W. Smith, but not vice versa, because William always en- 
braces "W", but the letter "W" may not always stand for 
William. 

DEED TO DEAD PERSON NOT VOID; 

In City Bank v. Pland (124 N. W. 1000), it was held 
that Sheriff's deed to a deceased person passed title to 
his executor. (See 3 Dev. on Deeds, 267.) 

DEED TO ESTATE VOID; 

A deed to "Estate of John Smith" is void. There is 
no grantee capable of taking title. (39 Pac. 130, 13 Cyc. 538.) 

GRANTOR NAMED ALSO AS GRANTEE ; 

A deed from John Smith to John Smith and Mary Smith, 
his wife, vests the legal title to all in Mary Smith as a 
person cannot convey to himself and is incapable of taking 
an estate from himself by deed. 

CHANGE OF NAME OF GRANTEE ; 

Any person in whom title is vested who afterwards 
from any cause has his name changed must in a subsequent con- 
veyance set forth the name under which title was acquired. 
The Recorder must index both names. (1096 and 1905 C. C.) 

RIGHTS OF CONVICT ; 

Can make and acknowledge conveyance of property. 
(675 Penal Code. ) 

GRANTEE CAPABLE OF TAKING TITLE; 

A deed running to "A or B" as grantee is void for 
uncertainty. 

A deed is void unless there is a grantee capable of 
taking. Where a deed ran to "the community styling itself 
the German Roman Catholic St. Bonif azious 's Church Community", 
the court held no title passed as the grantee was an unin- 
corporated association of persons, and was not a corporation 
de facto or de jure. The decision cites a deed to "Hibernia 



150 



Company" held void in 25 Cal. 230, as running to a voluntary- 
association without legal existence, a body unknown to the 
law. Also deed to "W. W. Phelps & Co." as passing legal 
title to W. W. Phelps alone. A deed being required to be 
made in writing by statute, the grantee must be sufficient- 
ly ascertained by the instrument or it is void. A firm con- 
sisting of surnames vests title in the several parties named 
and if members of a partnership are designated with suffi- 
cient certainty under a firm name, they will take, but "Com- 
pany", "Co." or "Bro." is insufficient. (150 Cal. 435, Rix- 
ford vs. Zeigler.) (See, also, 124 Cal. 418.) 

A deed running to "J. S. and his heirs" is good if 
J. S. is living as he has no heirs and there is no one to 
claim adversely to him. (14 Mich. 215, Reacy vs. Kearsley. ) 
If J. S. was then dead the deed is void as "heirs" is a word 
of limitation and not purchase and there is no person to take 
under it. (12 Cal. 363.) 

GRANTEES HOLD IN EQUAL MOIETIES: 

A deed to A & B conveys each presumptively a half 
interest each. (35 Cal. 536 and 26 Cal. App. 775.) If 
either deeds to C an undivided half the record presumption 
is conclusive; if either deed to C all his right, title and 
interest, presumptively one-half passes. 

DEED TO GRANTEE "AS HIS SEPARATE PROPERTY" : 



Neither spouse is estopped from showing, as against 
the other, the true nature of the consideration. (31 Cal. 
448.) See, also, 1962 C. C. P. as to "the recital of a considera- 
tion". 

POSSESSION, PROOF OF DELIVERY: 

Possession of a deed by grantee is prima facie evi- 
dence of delivery and being a question of fact, nondelivery 
must be proved against him. (49 Cal. 374.) 

GRANTEE INSERTED AFTER EXECUTION: 



decided : 



In the case of Upton vs. Archer, 41 Cal. 85, it was 



"A deed in due form, signed and ac- 
knowledged by the grantor, does not become 
his deed until the name of a grantee is in- 
serted therein and an agent of the grantor 
cannot insert the name of a grantee in the 
absence of the grantor unless his authority 
is in writing. " 

The Statute of Frauds governs the case. (See 1624 C. C. ) 



151 



Thus an agent in California sells property here for 
an Eastern resident who forwards his deed to the escrow with 
grantee's name left blank. The agent produces a letter from 
the seller instructing him to write in the name of the pur- 
chaser. This is legally permissible. 

ALL GRANTORS MUST BE NAMED IN PREMISES: 

A deed signed also by persons not mentioned among 
those enumerated as grantors, is not the deed of those par- 
ties. (159 Cal. 610. ) 

FORGED DEED VOID: 



A forged deed is absolutely void (23 Am. St. Rep. 
84) even in the hands of an innocent purchaser. It does 
not divest the purported grantor or invest the grantee with 
any rights. 

DEED IS FINAL UNDERSTANDING OF PARTIES: 

All prior negotiations must be taken as merged in 
the deed, the presumption being that it embraces the whole 
engagement of the parties. However, separate deeds execut- 
ed at the same time, relating to the same subject matter, 
may be construed as one instrument. (88 Cal. 132, 79 Cal. 449.) 

IN WHOSE FAVOR CONSTRUED: 



A deed is construed most strongly against the gran- 
tor and in favor of the grantee, (22 Cal. 224, 159 Cal. 37), 
except that a reservation in a grant and every grant by a 
public officer or body to a private party is to be inter- 
preted in favor of the grantor. (1069 C. C.) 

ERROR IN DATE: 

A deed becomes operative at delivery and not from 
its date, though the latter is prima facie evidence of the 
time of its execution. When executed by several persons its 
date is considered to be that of the execution of the last 
grantor. See Devlin on Deeds, Sec. 177. 

A mortgage may be dated and acknowledged prior to 
the date of the note. Sec. 3091 et seq. C. C. and 69 Cal. 
550, 64 Cal. 489 and 130 Cal. 10 for illustrations. 

RECORDING AFTER OFFICE HOURS : 

The deposit of an instrument in Recorder's office 
accepted after office hours is good. (121 Cal. 254.) 

EFFECT OF AFFIDAVIT: 

See Reeves vs. Roberts, 242 S. W. 956, as to marketable 



152 



title. Affidavits may be used to explain defects but not 
to change them. 

Affidavit will not connect Ida M. Smith as grantee 
with Amy A. Smith grantor, but may show change of name by 
marriage or marital status of a party. See Lawyer and 
Banker for Jan., 1923, XVI 1. p. 45. 

UNSIGNED INSTRUMENTS ; 

Are not made valid by curative act. See Sec. 1091, 
C. C, and 1971, C. C. P., and Devlin on Deeds, 3rd Ed., Vol. 1, 
Sec. 547b. 

SIGNATURE BY MARK: 



Signature or subscription includes mark, when the 
person cannot write, his name being written near it, by 
a person who writes his own name as a witness. 

Subsequent to 1903, two witnesses are necessary to 
entitle an instrument signed by mark to be recorded (14 
C. C.) and the name of the party so signing must be written 
by one who writes his own name as a witness thereto. 

Signature by mark is discussed at length in Es- 
tate of Walker (110 Cal. 387). The majority of opinions 
construe the statute strictly. 

In re Guilfoyle, 96 Cal. 598, the testator's name 
was written in the body of a very short will by one of the 
witnesses, but was not written at the end of the will ad- 
joining the mark. The Court upheld the will on the ground 
that the name was written near the mark, although not im- 
mediately adjoining it. 

The purpose of writing the name near the mark is 
to show whose name the mark is intended to represent. (Jack- 
son vs. Jackson, 39 N. Y. 163.) 

The affixing by the Clerk of the seal of the Court 
to a form to which is appended his printed name was an adop- 
tion of the printed name which for the purpose in hand was 
sufficient. (Ligard vs. Cal. So. R. R. Co., 76 Cal. 610.) 

It seems that the intention of the law is that the 
witness should write the name and it is doubtful if a print- 
ed or typewritten name is within the statute, but see Cor- 
pus Juris 18-190, which says they are good. 

The names of two persons near the mark are suf- 
ficient without qualification. (163 Cal. 290, 125 Pac. 233.) 



153 



MARK AS A SIGNATURE 



A good form to satisfy Sec. 14, C. C. , is: 

Witness to Mark 

JOHN DOE 
RICHARD ROE 
The name of Rex Bacon his 

who cannot write, being Rex x Bacon 

written by me. Mark. 

JOHN DOE. 

AUTHORITIES ON SIGNATURE BY MARK: 

As to signature by mark generally, see Estate of 
Walker, 110 Cal. 387, reported also in 52 Am. St. Rep. 104; 
42 Pac. 815, and 30 L. R. A. 460. In re Guilfoyle (96 Cal. 
598, 31 Pac. 553), 22 L. R. A. 370 and monographic note. Ex 
parte Miller (49 Ark. 18, 4 Am. St. Rep. 17). First Natl. 
Bank vs. Glenn (10 Idaho 224, 77 Pac. 623, 109 Am. St. Rep. 
204). Langenbeck v. Louis, 140 Cal. 406. People v. Mc- 
Daniels (141 Cal. 113). Kennel v. Austin Min. Co. (144 Fed. 
Rep. 859). 

WITNESS DEFINED: 



A witness is a person whose declaration under oath 
is received as evidence for any purpose, whether such dec- 
laration be made on oral examination, or by deposition or 
affidavit. (1878 C. C. P.) 

SWORN STATEMENT: 



Every mode of oral statement, under oath or affir- 
mation, is embraced by the word "testify" and every written 
one in the term "depose". (14 C. C.) 

FOREIGN SIGNATURE: 



When a deed is signed in Hebrew, German, or other 
alien characters, it should show a witness opposite sig- 
nature and state: 

Witness to signature of 

who signs in Hebrew 



RECORDING FOREIGN INSTRUMENTS: 

New Section added to Political Code in effect July 
29th, 1921, reads as follows: 

4131a: "When an instrument, intended for 
record is executed or certified in whole 



154 



or in part in any other language than the 
English language, recorders are not required 
to accept such instruments for record; pro- 
vided, however, that a translation in English 
of an instrument executed or certified in 
whole or in part in any other language than 
the English language may be presented to the 
judge of a court of record, and upon verifi- 
cation that such translation is a true trans- 
lation such judge shall duly make certifica- 
tion of such fact under seal of the court, 
and shall attach such certification to such 
translation, and shall also attach such cer- 
tified translation to the original instrument. 
For such verification and certification a fee 
of fifty cents shall be paid for each folio 
contained in such translation. Such attached 
original instrument and certified translation 
may be presented to the recorder, and upon pay- 
ment of the usual fees the recorder shall ac- 
cept and permanently file the same and shall 
also record the certified translation. The 
recording of such certified translation shall 
give notice and be of same effect as the re- 
cording of an original instrument. Certified 
copies of said recorded translation may be 
recorded in other counties, with like effect 
as the recording of the original translation." 



STRUCTURES OVER ALLEYS: 



The public easement in the alley includes not only 
the right of ingress and egress, but right to receive light 
and air, right to maintain unobstructed so that signs may 
attract trade. (150 Cal. 592.) 

ACCEPTANCE OF DEEDS BY POLITICAL CORPORATION: 



Sec. 1158, as amended (Stats. 1921, p. 143), provides that 
grants to a political corporation of real estate or easements 
for public purposes shall not be accepted for record without 
the consent of the grantee evidenced by its resolution of ac- 
ceptance attached to the deed. This applies to deeds to 
cities, counties, schools and governmental bodies generally. 

DEEDS TO SCHOOL DISTRICTS: 

The following form has been used to comply with Acts 
1921, p. 143, and is acceptable to County Recorders: 

"BE IT RESOLVED that District 

hereby accepts from (grantor) the convey- 
ance of the property described in the 



155 



within deed. 

(Date) 
Another form reads 



School District . 

By 

By ■ 



"The Board of Education hereby ac- 
cept s deed dat ed from 

to 

conveying Lot Tract 

BOARD OF EDUCATION OF THE 

By 

Secretary. 
Form for Deed from County: 



"The County of 

corporate and politic o 
California, in consider 
does hereby quitclaim t 
usual) . 

IN WITNESS WHEREOF 

of pursuant 

passed by its Board of 
caused this instrument 
its behalf by the Chair 

of Supervisors this 

County of 

By 

Chairman 
Supervis 



a body 

f the State of 

at ion of 

o (balance as 

the said County 
to a resolution 
Supervisors, has 
to be executed on 
man of said Board 
day of 19 



of its Board of 
ors. " 



(Use Corporation form of acknowledgment adapted 



to suit. ) 

VETERANS' WELFARE BOARD: 



Mr. Stout, who is now Secretary of the Board (vice 
Robert Smith, resigned) , drew attention to the deeds conveying 
property to the Board, and which should all run as follows: 

"Veterans' Welfare Board of the State 
of California created under the Act of the 
Legislature of the State of California 
known as The California Veterans' Welfare 
Act approved May 30, 19 21." 

All policies should follow above wording in the 
vesting and we have been requested to use this form for 
deeds and vestings for the sake of uniformity. 

It is well to ascertain the name of the veteran 
who is buying the land under contract so that it can be run 



156 



for judgments. Section 4295, Pol. Code, exempts a board 
acting for the State from paying any fee for filing docu- 
ments for any official service. 

No acceptance of a deed to the Board is required. 

DEED FOR ROAD: 

Easement or Fee? Deed to city with habendum to hold 
"for the purposes of a public road of said city" was held to 
pass the fee and not an easement. Appellate Court upheld 
decision and Supreme Court denied rehearing. (Cooper v. 
Selig, 191 Pac. 983.) Grant was interpreted in favor of 
grantee under 1069 C. C. as grantor could have limited it to 
an easement if so intended. 

EASEMENT BY USER: 

Taxation of strip used as street does not stop city 
claiming easement by usage. (Lantz v. City of Los Angeles, 
54 Cal. App. 250. ) 

EASEMENT OR FEE: 



"Grant for sole purpose of an alley way to be used 
in common with owners of adjoining property, all that tract 
of land, etc." The court construed this as "an express 
grant of an easement, a right to use and nothing more. (103 
Cal. 516.) 

EASEMENT ONLY GRANTED: 



A direct grant of right of way for a road carried with 
it only an easement in the land, and where the deed, imme- 
diately following the grant, bargain and sale clause and the 
description contains the declaration of the grantor that 
"this grant is for the purpose of granting to party of the 
second part of right-of-way from his premises to the county 
road," the expressed intention is to limit the interest con- 
veyed to an easement for right-of-way. (Parks v. Gates, 61 
Cal. Dec. 767.) 

CONTRACT OF SALE NOT A CONVEYANCE: 



Contract of purchase is not a conveyance governed by 
164 C. C. See Peiser v. Bradbury, 138 Cal. 570. 

VENDEE SHOULD PAY VENDOR DIRECT: 



Owner gives agreement of sale and later deeds to 
third party. (Deed was in fact made as security for obli- 
gation.) Vendee thereafter made payments to grantee under 
the deed. Title was lost by foreclosure of outstanding 



157 



mortgage. Vendee cannot get his money back, as his contract 
was with original vendor, not the above grantee. (See Lewis 
v. Crenshaw, 5/28/20 in 191 Pac. 72.) 

DEED FOR UNDIVIDED ACREAGE: 



A deed for a certain number of undivided acres in a 
block is good. (83 Cal. 56.) 

WILD DEED NOT A CLOUD: 



If it has no connection with the chain of title, con- 
stitutes no cloud or encumbrance. A trust deed by a stranger 
to the title and overlapping upon the property was held to be 
no lien and to impart no notice in Bothin v. California Title 
Insurance Company (153 Cal. 718). Title companies do not 
usually ignore such deeds. A searcher should be on his guard 
and make sufficient inquiry to protect him. Such instruments 
should always be posted to the property account and be includ- 
ed in the chain. 

DEED OR WILL: 



An instrument is testamentary only when the grantor 
intended it should not be operative till his death. If a 
present interest passes, tho' only an interest in a future 
estate and subject to defeat, it is a present conveyance 
and not a will. (167 Cal. 570; 109 Cal. 323.) 

RIGHT TO CONVEY RESERVED IN DEED: 

Grantor in his deed may reserve right to sell and re- 
convey to any person and deed imparts notice of same. (167 
Cal. 570.) 

DEED FOR SUPPORT AND MAINTENANCE: 



A parent deeds her home to her son reciting that the 
grantee in consideration thereof is to pay her $20.00 per 
month or to give her board and lodging while she lives. This 
is not in the nature of a mortgage because there is no ante- 
cedent debt in existence. No vendor's lien is reserved as 
there is no definite purchase price. Such a covenant was 
construed in Womble v. Womble (14 Cal. App. 739) to be per- 
sonal only and a purchaser from the grantee would take clear 
of any charge thereunder. 

LIFE ESTATE ONLY: 



Anson deeds to Martha, but grantee shall not transfer 
cr encumber and on her death property goes to remaindermen. 
This is a life estate with power to deal with same, but not 
with the fee. See Estate of Caruthers, 161 Cal. 588. Re- 
mainder goes to Anson or if he diec first then to "the heirs 



158 



of Martha". These heirs in such case take as a class to be 
determined in equity, not probate. (171 Cal. 637.) 

VESTIN G IN REPRESENTATIVES: 

Deed from A to B "for life and at our death to our 
legal heirs and representatives" vests a life estate in B 
and at his death share and share alike to the lawful heirs 
of A and B. This is governed by 1334 C. C. and see deci- 
sions: "Legal representatives" means heirs and widow. (53 
Conn. 261, 13 Phila. 318, 83 Conn. 342, also 148 Pac. 545 
and 120 Pac. 429.) 

VENDEE IN DEFAULT CANNOT RECOVER I MPROVEMENTS: 

A vendee under a contract of sale is not entitled to 
recover the value of his own improvements, after he has de- 
faulted in his obligations. (Wilson v. Smith, 45 C. A. D. 402.) 

"CONVEYANCE" INCLUDES MORTGAGE: 



The word "Conveyance" as used in the code includes 
a mortgage and instruments affecting title. (1215 C. C.) 



159 



DEEDS 
DESCRIPTION 



GENERAL RULES : 

The purpose of the description in a deed is to 
identify the land to be conveyed and the purpose of the 
construction of the same is to ascertain the true intent 
of the language used. If the description is not sufficient- 
ly definite to enable the land to be identified, then it is 
void for uncertainty. (30 Cal. 43C, 41 Cal. 263.) But if, 
taken as a whole, in spite of errors and inconsistencies, 
the subject of the grant can be ascertained, the deed will 
not be void, great liberality being allowed by the courts 
in the construction of the language to uphold the intent 
of the parties to the conveyance. (169 Cal. 157.) 

Where the description is false in some details, but 
sufficient description is left after rejecting the false 
parts, the deed is effective. 

DEFINITE RULES OF CONSTRUCTION: 

When the construction is doubtful and there are no 
other sufficient circumstances to determine it, the follow- 
ing are the rules for construing the description in a con- 
veyance (2077 C. C. P.): 

(1) Where there are certain definite and as- 
certained particulars in the description, the 
addition of others which are indefinite, un- 
known or false, does not frustrate the con- 
veyance, but it is to be construed by the 
first mentioned particulars. 

(2) When permanent and visible or ascertained 
boundaries or monuments are inconsistent with 
the measurement, either of lines, angles or sur- 
faces, the boundaries or monuments are paramount. 

(3) Between different measurements which are 
inconsistent with each other, that of angles 
is paramount to that of surfaces, and that of 
lines paramount to both. 

(4) When a road or stream of water not navigable 
is the boundary, the rights of the grantor carry 
to the middle of the road or the thread of the 
stream unless it is held under another title. 

(5) When tide-water is the boundary, the rights 
of the grantor to ordinary high-water mark are 



160 



included in the conveyance. When a navigable 
lake, where there is no tide, is the boundary, 
the rights of the grantor to low-water mark 
are included in the conveyance. 

(6) When the description refers to a map, and 
that reference is inconsistent with other par- 
ticulars, it controls them if it appear that 
the parties acted with reference to the map; 
otherwise the map is subordinate to other 
definite and ascertained particulars. 

REFERENCE TO MAP OR ANOTHER DEED: 

The description may refer to another deed or to a map, 
and the deed or map referred to is considered as incorporated 
in the deed itself (24 Cal. 444, 50 Cal. 429 and 450). 

TWO DESCRIPTIONS OF SAME LAND: 



Where two descriptions of the same premises are given 
and they conflict, effect must be given to the one which is 
most definite and which will carry out the evident intention 
of the parties. 

A detailed description will control a general one, but 
if the general description is accurate and the detailed 
description is uncertain, the general description will be 
accepted. Thus if a deed contains a mete and bound descrip- 
tion which fails to close and a general description desig- 
nating the lot or tract to be conveyed, the particular 
description will be rejected and the general one taken. 

Where a deed contains two descriptions, one covering 
land owned by the grantor and the other land he does not own, 
the former may be accepted and the other rejected. 

EFFECT OF STATING ACREAGE: 



A description often is followed with a statement that 
the land described contains so many acres. Unless there is 
an express covenant that the acreage stated is the land men- 
tioned, the clause as to quantity is considered simply as a 
part of the description and will be rejected if it is in- 
consistent with the actual area, when the same is capable 
of being ascertained by monuments and boundaries (12 Cal. 
148). But the language used in the description may be such 
that it is evident that the parties intended the deed to 
convey only a specific quantity of land and in such case 
no more will pass (2 Devlin, pars. 1044-5). 

GOVERNMENT SURVEYS : 

The official surveys of the public lands of the United 



161 



States are controlling. So the description and plat of 
the original government survey, made by the Surveyor-Gen- 
eral from the field notes, and filed in the General Land 
Office, are conclusive; and the section lines and corners 
as laid down in the description and plat are binding upon 
the general government and upon all persons concerned. 

The location of a township upon the public domain 
is where the government surveyor has actually lined it out, 
and is to be determined by the monuments placed by him in 
the field (134 Cal. 136) and the true corner of a govern- 
ment subdivision is where the United States surveyor es- 
tablished it, whether this location is right or wrong. 
(32 Cyc. 801.) 

RECOGNIZED BOUNDARIES ; 

Where it is proved that a line has been agreed upon 
either expressly or by long acquiescence as the dividing 
line between two tracts of land, the courts will not dis- 
turb that line (48 Cal. 395, 66 Cal. 218, 76 Cal. 476). 

AGREEMENT FOR LOCATION OF BOUNDARY: 



Where coterminous land owners, being uncertain of the 
true position of their common boundary line, agree upon its 
true location, mark it upon the ground, or build up to it, 
occupy on each side up to the place thus fixed, and ac- 
quiesce in such location for a period equal to the statute 
of limitations, or under such circumstances that substan- 
tial loss would be caused by a change of its position, such 
line becomes, in law, the true line called for by the re- 
spective descriptions, regardless of the accuracy of the 
agreed location as it may appear by subsequent measure- 
ments. (Price vs. De Reyes, 161 Cal. 484.) 

DESCRIPTION IN HABENDUM: 



The "habendum" clause in a deed may modify or explain 

the grant, but cannot enlarge it. If the habendum clause 

should contain other property not in the grant no title passes 
for any such additional property. 

REFERENCE TO POINTS OF COMPASS: 



Unless qualified by reference to fixed monuments the 
word "Northerly" means due North and so with the other car- 
dinal points as construed by court decisions of long stand- 
ing. A misunderstanding of this may vitiate a description, 
as the following illustration will show. 

Take a square parcel of land 100 feet on each side, 
the 4 angles of which face the 4 cardinal points of the com- 
pass and the southwest line fronts on Main Street, known as 



162 



Lot 1. The owner wants to convey the southeasterly half. 
His description reads "Commencing 50 feet southerly from 
the westerly corner of Lot 1, thence easterly 100 feet, and 
so on. His beginning point is due south of said west cor- 
ner in the street and the tract described mostly entirely 
outside Lot 1. If he has used the same description but tied 
each course to the lines of the lot these would have con- 
stituted monuments and controlled his courses. 

TITLE TO STREET CENTER: 



An owner of land bounded by a road or street is pre- 
sumed to own to the center of the way. But the contrary may 
be shown. (831 C. C. ) 

A transfer of land bounded by a highway passes the 
title of the person whose estate is transferred to the soil 
of the highway in front to the center thereof, unless a 
different intent appears from the grant. (1112 C. C.) 

See also the rules for construing descriptions under 
Sec. 2077, C. C. P., hereinbefore referred to. 

When an owner of land subdivides it into lots with 
dedicated streets and makes a deed of a lot by its desig- 
nated number, the grantee takes title to the center of the 
adjoining street or streets, subject, however, to the public 
use of that part of the property within the lines of the 
street. His land is burdened with an easement against it 
to that extent. He does not take the part in the street 
as appurtenant to his lot because land cannot be made appur- 
tenant to land. He takes it by virtue of the code pro- 
visions above referred to. If the street should be subse- 
quently vacated he will then own the land in the street dis- 
charged of the burden of the easement, but the vacation does 
not affect or disturb the title to the land itself, which 
remains vested as before. 

"Unless the deed manifests a clear intention on the 
part of the grantor to limit the boundary line, that line, 
when the land is bounded by a non- navigable stream or high- 
way, extends to the center of such stream or highway, £f the 
grantor is the owner of the fee. " (22 Cal. 484, 51 Cal. 425, 
50 Cal. 31.) And so where a deed describes the land as ex- 
tending 500 feet to a street and thence at right angles along 
the street, etc., to beginning, the fee to the center of the 
street is conveyed subject to the public easement notwith- 
standing the fact that the distance of 500 feet extends only 
to the side of the street and not to its center. There is 
no clear intention in this case to exclude the land in the 
street. If the description had run to say the east line of 
the street and thence at right angles along said east line 
no title to the land in the street would pass by the grant 
(51 Cal. 196). Where land abuts on a navigable stream or 



163 



on tide waters the abutting owners' title extends to the line 
of mean high tide. Between that line and low water mark the 
State owns title under its so-called sovereign rights, but 
owns it in trust for public use. 

Where a Mexican grant under U. S. patent is bounded 
by the ocean, its boundary line follows the line of mean 
high tide and expands or contracts according to its natural 
variations. 

In construing instruments in a chain of title the 
above must be carefully heeded because, if in any deed the 
title to the soil in the street fails to be included, the 
title remains vested in the grantor and no subsequent deed 
by his grantee can cure the omission nor will the subsequent 
vacation of the street divest said grantor of his title. 

It may also be considered that when a line in a deed 
runs to a street thence along the street, by the words of the 
grant the street becomes a monument and under the rules of 
constructions, the center of the monument is intended unless 
the contrary meaning is expressed. 

The text books on deeds and descriptions therein cite 
a great number of decisions covering many examples of vary- 
ing language with differing shades of meaning and the con- 
struction of the same as applied to this question, but under 
our California statutory provisions a clear intention to ex- 
clude the highway must be shown in a conveyance to prevent 
title passing to the grantee to the center thereof. (See 22 
Cal. 491, 50 Cal. 31, 71 Cal. 27.) "Thence along the east- 
erly line of the street" was taken to exclude any part of 
the street in 51 Cal. 197 and 70 Cal. 541. 

Subdivision maps appear of record upon which the owner 
of the tract dedicates a street along the boundary entirely 
on his ov/n land. When he deeds a lot fronting on this street, 
title carries under the above showing to the middle of the 
street. There are cases in other States which hold that the 
fee to the entire street abutting passed with the lot on the 
grounds that as the grantor had expressed no contrary inten- 
tion it was not to be presumed that he intended to retain 
what was of no benefit to him and might be of benefit to his 
grantee. It is not safe or practicable to follow this de- 
cision in ordinary practice. But it is clear that if the 
owner of land across the street should subdivide it and front 
his lots on the already dedicated street, his grantees in 
deeds of lots in the new tract would take no interest in the 
street. 

DEEDS AFTER VACATION: 

It has been generally held by title men that after 
vacation of a highway, the property in the street owned by 



164 



an abutting lot owner, being no intrinsic part of the lot 
itself, should always be separately described in any deed 
conveying the lot and the part vacated. This is still so 
where no map reference to the tract issued, but under what 
is known as the Anderson decision a reference to the re- 
corded map makes this unnecessary for the reason that by 
referring to plat by book and page of its record, the whole 
plat is read into the deed and used for purposes of con- 
struction, becoming the measure of the grant, and since this 
map shows the highway, the deed of a designated lot will 
carry to the middle of the adjoining street even tho the 
street is in fact vacated. 

LOT AS STREET: 

Where the authorities have rejected an offer of 
dedication of certain streets upon a map, these are some- 
times designated as "Lot A", etc., and are in fact private 
streets. A deed for lots fronting on such strips should 
include the right of way for street purposes over the same 
tho such rights would in most cases pass as appurtenant to 
the lot as "ways of necessity." (53 Cal. 135.) 

FILLED-IN LOT ON WATER FRONT : 

Here great care is necessary not to certify to any 
land not within the true record holding. It is sometimes 
found that the rear end of a tier of lots in a subdivision 
runs back into land sometimes under water. The title of 
the subdivider is bounded by the mean line of high tide. 
To make his water lots salable he builds a piling in the 
water, dredges on the outside and fills in the rear of the 
lot. The filled land is not accretion deposited by natural 
and imperceptible degrees, but, being moved in by human 
agency, is no part of the original holding. The descrip- 
tion in a policy should except any part of the lot lying 
below the line of mean high tide. 

DESCRIPTION IN POLICY ISSUED: 



Too much care cannot be taken in framing the descrip- 
tion for the policy or guarantee or certificate as finally 
issued and especially in writing a description by metes 
and bounds. Instruments in the record chain of title are 
often clumsily drawn, but may be sufficient to pass the title. 
These should not be followed, but a new description should be 
made giving all necessary ties to established monuments so 
that the same may be copied from the policy and used in 
future transactions involving the property. Where a sur- 
vey has been had showing the land in actual possession it 
should be followed and boundary line deeds or agreements 
secured to harmonize it with the record title. Wherever 
possible the plat of the survey should be recorded so that 
the property can be designated by a simple reference to the 
plat. 



165 



•AREAS TO STREET CENTERS ; 

Some maps show lots with acreage marked thereon 
stating that "areas are computed to street centers." Sup- 
pose such a lot is bounded by a street on its west side and 
shows an area of "10 acres" on the plat. A deed for the 
west 5 acres of the lot conveys, by the weight of authority, 
5 acres within the lot lines unless the deed itself states 
that the acreage is measured to street centers. This leaves 
less than 5 acres in the east part of the lot unconveyed. 
The lot is bounded by the lines enclosing it, the street 
alongside encloses nothing. Boundary deeds should be shown 
in the search so that no overlaps are passed or unconsidered. 
Such a description may still carry the title to half the 
adjoining street, altho the street is not included in the 
5 acres of the lot itself which is conveyed. (95 Cal. 661.) 

RIGHT OF WAY OF NECESSITY: 

A grant includes not only the land conveyed but by 
implication whatever is necessary to its proper enjoyment 
(53 Cal. 135). So if the owner of a larger tract deeds a 
portion of it entirely surrounded by land he retains or 
partly by land he retains and partly of a stranger, the 
grantee has what is known as a way of necessity for in- 
gress and egress over his grantor's land. He cannot choose 
it himself, his grantor may do that, but it must be prac- 
ticable as a roadway. (55 Cal. 350.) 

An owner of land fronting on a dedicated street has 
an easement in the street as appurtenant thereto and for 
the proper enjoyment and use of his land distinct from the 
public right of way. This is so even though he owns no 
part of the street. This is property which cannot be taken 
away from him without due process of law. This phase of 
the question is made clear in the case of Bigelow vs. 
Ballerino (111 Cal. 568). See, also, Schaufel vs. Doyle, 86 
Cal. 109. 



166 



DEEDS 
EXCEPTIONS AND RESERVATIONS 



DEFINED : 

An EXCEPTION in a deed withholds from its opera- 
tion some part or parcel of the thing which but for the 
exception would pass by the general description to the 
grantee. 

An exception is that which is cut out 
of the thing conveyed and title to which is 
not included in the grant . If it is an ac- 
tual part of the thing described such as 
"all water, in, upon and under said land," 
or "all minerals or rock", etc., it must be 
excepted from the description as not being 
included in the particular parcel of land 
the title to which is being searched and 
guaranteed. 

A RESERVATION, on the other hand, is the creation 
of some new right issuing out of the thing granted and which 
did not exist before as an independent right in behalf of 
the grantor, and not of a stranger. 

In distinguishing between a reservation and an ex- 
ception in a deed the words "reserving" and "excepting" 
are not conclusive in determining which is intended. The 
character and effect of the provision itself must determine 
what is intended. If the intent of the deed is to vest in 
the grantor some new right or interest which did not before 
exist in him it is a reservation, but if it was the plain 
purpose of the parties not to reserve a new right which 
should vest in the grantor, but to recognize and except 
from the grant an existing right which would otherwise pass 
to the grantee, it is the purpose to create an exception, 
whatever the language used. An exception is always some 
part of the estate not granted at all. A reservation is 
always of something taken back out of that which is already 
granted, no matter what name the parties may give to them. 

The rule is to construe a grant against the grantor 
and to construe a reservation in his favor. 

Reservations must not be confused with Conditions, 
which limit the grantee's use of the land and usually take 
the form of restrictions upon the use of the premises and 
as to cost, character and locations of improvements, liquor 
and race clause. (See under "Conditions".) 



167 



HOW EXCEPTIONS AND RESERVATIONS HAVE BEEN CONSTRUED: 

In Blackman vs. Striker (N. Y. 1892) the deed con- 
veyed a certain lot 2 "saving, excepting and reserving" 
"the family burying ground", describing the same. Held 
that the fee of the burial ground passes to the grantee 
subject to the easement in favor of the heirs. 

In Biles vs. Tacoma and 0. R. R. , 5 Wash. 509 (32 
Pac. 211), it was held that a conveyance of section prop- 
erty containing the following "reserving and excepting" 
strip 400 feet wide "to be used for right of way," did not 
operate as an exception of the strip, but merely a reser- 
vation of a right of way or easement in the land and the 
title to the whole tract vests in the grantee by virtue 
of the deed. 

In Fisher vs. Laack, 76 Wis. 313 (45 N. W. Rep. 104), 
the deed described the land conveyed as "Lot 8, Blk. 19 — 
except the south 12 ft. of said lot to be used as an alley." 
Held, "this language is plain and unambiguous and proof of 
extrinsic facts is inadmissible to contradict or affect 
its construction. The word 'except 1 is employed, but the 
subject matter to which it refers is a reservation." No 
general rule can be laid down for the treatment of excep- 
tions and reservations in deeds. Each case must be con- 
sidered alone on its merits. A provision that the grantee 
shall make certain improvements for the grantor's benefit, 
as that he shall build a culvert, is plainly a reservation 
(30 Am. Rep. 672) ; but a provision for retention of pos- 
session by the grantor is held to be an exception out of 
the body of the estate. (24 Am. Rep. 191.) 

The rule that a reservation must be something not 
in being, but newly derived from the thing granted, must 
not be understood as preventing the reservation of some 
right which the grantor previously enjoyed. That is to 
say, as owner of the fee the grantor had the absolute 
right to any lawful use of his land. But those rights 
did not exist as things separate from his land. The ef- 
fect of the deed with a reservation is to sever the one 
from the other, and the reserved right becomes in a legal 
sense a new thing derived from the land. So a reservation 
by an owner conveying land, of the free flow of light and 
air over it without obstruction, is good as something not 
in the sense of the law, before existing, but derived from 
the thing granted. (58 Am. Dec. 734.) This theory will be 
found to have been frequently applied by the courts in 
passing upon the reservation of an easement. (8 R. C. L. 1089.) 

Generally it is declared that a reservation must 
be in favor of the grantor or party excepting the convey- 
ance and not to a stranger (cases cited and notes, 13 L. R. A. 
289; 20 L. R. A. 634), but there are some cases holding or 



168 



intimating the contrary (20 L. R. A. 634; 20 L. R. A., N. S. , 
221, Am. Cas. 800), a better statement of the rule is that, a 
reservation in a deed to a stranger being by the weight of 
authority invalid as a reservation, the tendency of the 
courts is to effectuate the intention of the grantor by 
treating it as an exception. (20 L. R. A., N. S. , 221; 18 
Am. Cas. 800.) 

A reservation is not the less made to the grantor 
if it is so made that others can derive advantage from it ; 
it will be considered as made to him when valuable rights 
are secured to him, though others may be benefited by it. 
(58 Am. Dec. 734; 8 R. C. L. 1091.) 

The following cases are cited in support of the 
opinion that language such as "Reserving therefrom a strip 
of land 25 ft. wide off the east side for street purposes" 
constitute a reservation instead of an exception: 

See 503 Jones on Real Prop. 

Ashcroft vs. R. R. , 126 Mass. 196 (50 Am. Rep. 672). 

Elliot vs. Small, 25 Minn. 396 (59 Am. Rep. 329). 

Kister vs. Reeser, 98 Pa. St. I (42 Am. Rep. 608). 

Blackman vs. Striker, 21 N. Y. Sup. 563. 

Biles vs. R. R. , S. Wash. 509 (32 Pac. Rep. 211). 

Fischer vs. Laack, 76 Wis. 313 (45 N. W. Rep. 104). 

Winston vs. Johnson, 42 Minn. 398 (45 N. W. Rep. 958). 

SHOWING RESERVATIONS, ETC. , IN CERTIFICATES: 

(a) Rights of way and easements should be separately 
set forth. 

(b) Reservations of pipe lines, pole lines, water, 
oil, gas, minerals and like should be separately set forth, 
care being taken to determine whether the matter referred 
constitutes an exception from the fee which should be ex- 
cepted from the description. 

(c) Liquor restrictions and ordinary restrictions 
as to buildings, their kind, cost and character, alignment, 
use, occupancy and the period set for their termination. 



End of Subject) 



175 



ESCROWS 



DEFINED : 

An escrow is the deposit with a third party of a 
conveyance or instrument in writing made upon the terms of 
a written contract, with instructions for its delivery upon 
the performance of a condition or the happening of an event. 

There is a material difference between a true es- 
crow and the mere deposit of papers with the third party, 
tho in ordinary business language the word "escrow" is 
used to include all such transactions. 

DEPOSIT ONLY : 

In the case of a deposit of papers in escrow, the 
escrowee is no more than a depositary or agent of the par- 
ties. His authority may be revoked and the papers with- 
drawn and if the depositor should die or become incompe- 
tent, his administrator or guardian may demand a return 
of his deposit and the property involved becomes an asset 
of his estate. 

In such a case care must be taken to ascertain 
whether the conditions of the escrow have been fulfilled 
or not before returning the deposit. If there has been no 
consummation, the administrator has no power to consent 
to the terms of the incompleted escrow as the property be- 
longs to the heirs of the decedent. 

TRUE ESCROW; 

A true escrow cannot be revoked within the time 
limit designated once the minds of the parties have met 
and the conditions are fulfilled, unless the parties 
mutually agree to a cancellation or withdrawal. A simple 
example of a true escrow is where A makes a deed to B and 
delivers it to C with instructions that C shall deliver 
the deed to B upon the death of A. The deed is placed 
beyond recall by A and upon his decease C takes title as 
of the date of the deed to which delivery relates back. 
The title vests at once in B, subject to the life estate 
of A until he dies. 

In a true escrow when conditions have been met the 
death or incapacity of either party is ineffective to alter 
or affect the transaction. Much depends upon the way the 
escrow instructions are drawn. When a deed is deposited 
with a third party it becomes an escrow provided the parties 
have made a valid contract of sale in writing. The deed 
itself may be sufficient if it contains the terms of the 
contract including the true consideration. 



176 



CONTRACT: 

In explanation of the above it should be noted that 
a Contract is an agreement enforceable at law; it must be 
based upon an adequate consideration and the minds of the 
contracting parties must have met. It must be in writing 
to satisfy the Statute of Frauds. 

STATUTE OF FRAUDS: 



Deeds and contracts were at one time valid and en- 
forceable if made verbally. So much confusion and false 
testimony occurred that in the reign of Charles II the 
English Statutes of Frauds was enacted which declares 
void any conveyance of an interest in real property and 
certain other contracts unless the same are reduced to 
writing. Our States have enacted substantially the same 
statute into their laws. It does not affect leases of 
real estate for less than one year, but includes a contract 
for the sale and purchase of land. 

STATUTE OF LIMITATIONS: 

This must also be understood. It limits the period 
within which legal proceedings may be commenced and avoids 
unreasonable delay in pursuing the rights and remedies of 
an injured party. When the period has elapsed the right 
or claim is said to be "outlawed" ; it is "barred by the- 
statute" or "the Statute of Limitations has run". 

Thus money judgments and actions for the recovery 
of real property outlaw in California in 5 years ; contracts 
in writing in 4 years. This governs the outlawry of a 
promissory note, and as in California a mortgage is only 
incidental to the debt it secures, when the note outlaws 
the mortgage itself cannot be foreclosed. The statute is, 
however, not self-executing, it must be pleaded. So it 
results that a mortgagor who has not paid his debt can- 
not plead the statute. To obtain equity he must do equity 
and come into court with clean hands. But an innocent pur- 
chaser of the property from the mortgagor can presume that 
the debt is paid within 4 years from its due date and plead 
the statute as a bar. Open accounts outlaw in 2 years. 

EXAMPLE OF INCOMPLETE ESCROW: 



The law is very clearly explained in the case of 
Holland vs. McCarthy (52 Cal. Dec. 499) under the following 
facts : 

A made a deed to B and deposited it with C with in- 
structions to deliver the same upon payment by B, the grantee 



177 



to C, the depository, of a named purchase price. A died 
and his administrator brought suit to quiet title to the 
property against B and C. It was held: 

1. That the transaction did not constitute 
an escrow. 

2. That A had the right to recall the deed 
at any time before the money was paid 
to C. 

3. That until the money was paid in C was 
the voluntary agent of A holding the 
deed subject to his order. 

4. That until such payment the deposit of 
the deed was not more than an offer 
which A could withdraw. 

5. That upon the death of A the authority 
of C to accept the money and deliver 
the deed ended. 

6. That until the time of death A had not 
parted with the title nor was bound to 
do so and the title vested thereupon 
in the heirs of A free from any claim 
of B. 

7. No interest could vest in B sufficient 
to make an escrow beyond recall with- 
out payment of some consideration by B. 

8. That the deposit of a deed with a third 
party to be delivered only on payment of 
a fixed price cannot be sustained as an 
escrow where there exists no prior or 
contemporaneous contract of sale of 
which delivery of the deed v/as to be 
the consummation. 

It appears from this decision that to place the deed 
beyond recall by the grantor either the money must be paid 
in or there must be a contract of sale and purchase between 
the parties to make a true and irrevocable escrow. If such 
a contract exists the escrow holder returns the money at his 
peril. 

PREMATURE DELIVERY BY ESCROWEE: 



A deed placed in escrow and delivered before the con- 
ditions for delivery are complied with does not pass the 
title (23 Cal. 528). An innocent subsequent purchaser is 
not protected (45 Pac. 800). There is no real delivery in 
such a case. The escrow holder may be the agent of the 
grantor and the fraud or mistake of the agent be unques- 
tionable by the principal, but to be a bona fide purchaser 
a vendee must deraign his title under a conveyance, this 
is not void. Such a conveyance falls within the same class 
as a forged or stolen deed. 



178 



CLAIM ON ESCROWEE BY STRANGER TO DEAL; 

A stranger to the escrow occasionally makes a claim 
for money, commission or proceeds, or asserts he has an un- 
disclosed interest in the property. Against this we find 
that the burden of proof to establish a trust interest not 
disclosed by the records is upon the claimant (145 Cal. 410). 
Written notice to an escrow holder by person having no rec- 
ord connection that he claims an undivided half interest 
in the property is not notice and may be ignored (Kowalsky 
vs. Kimberlin et al., decided Nov., 1916). To be effectual 
notice must be complete enough to put a person on guard 
(77 Cal. 449). However, the knowledge of the agent is 
imputed to his principal (165 Cal. 326) and the agent is 
liable to his principal for loss sustained in connection 
therewith (9 Pac. 709). 

PRO-RATING TAXES THRU ESCROW: 

County taxes become a lien at 12 o'clock noon on the 
first Monday in March, but the fiscal year to which they 
apply commences on the 1st day of July following and runs to 
June 30th of the next year. If a purchaser takes title say 
on October 1st, is the seller chargeable with his pro rata 
of taxes to said date from the first Monday in March or 
from July 1st? It is customary to accept July 1st as the 
date in all realty transactions and last year's assessment 
as the basis, unless the actual assessment for the current 
year is known from the tax rolls. Customers should under- 
stand this. If improvements have been placed on the prop- 
erty since last year's assessments, the value of these must 
be considered also. It is always advisable to get in the 
tax statements or receipts. Where a street bond is to be 
surrendered, secure the bond itself before closing. 

COMPUTING INTEREST: 



On notes secured by mortgage or trust deed, compute 
the time on a basis of 30 days to a month unless instruc- 
tions call for a stated amount per day. 

On judgments the interest is 7 per cent per annum 
and must not be compounded (1920 C. C.) and unless there is 
a written contract to the contrary, all money due carries 
7 per cent interest. In computing interest for a period 
less than one year, 360 days are deemed to constitute a 
year. (1917 C. C. j 

PRO-RATING RENTS : 

Ascertain date on which the rental month ends and 
compute time on the basis of the actual number of days, 
allowing purchaser the benefit of the day papers are filed. 



179 



INSURANCE IN ESCROW: 

Where insurance is handled do not close until the 
necessary waivers or transfers are obtained. Mutual policies 
are sometimes subject to further assessments which the pur- 
chaser should know about. When premiums are pro-rated see 
that they have been paid before transfer is made and ascer- 
tain who pays fees when insurance is "transferred free". 
Get in all insurance or cover its delivery before closing. 

HOMESTEAD PROPERTY IN ESCROW: 

Deeds of and loans upon homesteaded property must be 
handled in such a way that all proceeds inure to the benefit 
of both husband and wife, where the owner is married, and 
checks must be made payable to both spouses. 

FUTURE ADVANCES : 

It often happens that the escrow involves the filing 
of a mortgage with a junior mortgage or trust deed to follow. 
If the first mortgage provides for future advances to be made, 
the junior encumbrancer should be made to understand that 
these advances will take precedence over his own lien and 
to assent to same. 

LIABILITY UNDER CERTIFICATE OF TITLE: 

The certificate is not the contract between the search- 
er and his employer upon which to base an action, but the ac- 
tion is one for negligence in not exercising skill and care 
and the claim was held to outlaw in two years in the old 
case of Lattin vs. Gillette (95 Cal. 317). In case of simple 
negligence in Moody vs. McDonald (4 Cal. 297) it was held 
that actual damages only should be allowed. The value of 
the property at the date of issuing the certificate governs 
not any increased value that has attached since. The liability 
of conveyancers for errors of judgment is the same as that 
which applies to practitioners of law or medicine. (Watson 
vs. Moorhead, 96 Am. Dec. 213.) 

BROKERS* COMMISSION: 



An oral agreement to pay commission will not be en- 
forced by the courts. The employment of the agent must be 
in writing to satisfy the statute of frauds, tho it be only 
a note or memorandum of the oral contract. This can be 
amplified later, if disputed, by testimony as to its com- 
plete terms. The essential fact which must be in writing 
is the fact of employment. The amount of the commission 
may be shown by parol or may be measured by the services 
rendered. (Muncy vs. Thompson, 147 Pac. 178; see, also, 97 
Pac. 81.) The rendering of services is not sufficient 



180 



without the writing. (141 Cal. 109; Crawford vs. Kennedy, 
222 Pac. 644. ) 

CHECK AS CASH; 

A check is not cash, it is not lawful money which 
a creditor can be compelled to accept. But the law recog- 
nizes that by consent of the parties, checks may be used 
as representing cash (2076 C. C. P.; 56 Cal. App. 502). 



(End of Subject) 



185 



ESTATES AND PROBATE MATTERS 



TITLE UPON DEATH : 

A person has no natural right to control his prop- 
erty by disposition after his death, but the statute allows 
him to determine whether he shall permit his estate to de- 
scend to those persons whom the law designates as his suc- 
cessors or whether he will prevent such descent and make 
his own disposition of it by will. This right being stat- 
utory may be availed of only upon compliance with the 
strict requirements of the statute. Community right or 
interest, the right of homestead and protection for the 
family are all superior to the power of devise or bequest. 

HISTORICAL: 

Wills were allowed by the laws of England under Saxon 
rule, but were later held repugnant to the feudal system, the 
aim being to center all land titles in the Crown as the source 
of all power, and to this day an allodial title is unknown in 
that country. The original Statute of Wills was passed in 
the reign of Henry VIII and succeeded the powers of appoint- 
ment used prior thereto to control the disposition of real 
property after death. 

In the United States laws governing succession and 
devise were early enacted and in California the whole proc- 
ess of passing down the title is minutely and clearly cov- 
ered by statutes defined and clarified by decisions of 
authority. 

The estates of persons dying before the adoption of 
our State Constitution were subject to administration under 
the laws of Mexico. The heirs or devisees took title at 
once, subject to the debts of the decedent, which were of no 
concern to the court. 

Since that time when a person dies owning property 
the title vests immediately in his devisees if he left a 
valid will or in his heirs if he made no testamentary dis- 
position of it under the laws of succession, subject, how- 
ever, to debts outstanding and administration by the Superior 
Court sitting in probate. 

PROBATE COURT, AUTHORITY OF: 

Administration of the estates of deceased persons 
and distribution thereof to those entitled thereto and pro- 
ceedings in connection therewith are purely statutory. The 
probate court has only such powers as are derived from the 
statute and powers incidental to the exercise of the juris- 
diction conferred. (88 Cal. 374; 102 Cal. 8.) 



186 



SUCCESSION; 

This is defined in 1383 C. C. to be "The coming in of 
another to take the property of one who dies without dispos- 
ing of it by will". 

REASONS FOR ADMINISTRATION: 



These are defined in Estate of Moore, 57 Cal. 437, and 
in Phelan vs. Smith, 100 Cal. 465, as - 

1 - To support the family for a period. 

2 - To set apart a homestead for the family. 

3 - To pay the expenses of administration. 

4 - To pay the debts of the decedent. 

5 - To distribute the balance of the estate 

to those who take it by law. 

NECESSITY FOR PROBATE PROCEEDINGS: 



In the Estate of Strong (119 Cal. 663) administration 
was commenced upon the estate of intestate, administrator 
was appointed, and upon representation to the trial court 
that the matter had been settled amongst the heirs the 
court found there was no necessity for administration and 
dismissed the proceedings. Upon appeal the Supreme Court 
finds as follows: 

"Whatever the law may be in other jurisdic- 
tions, there is nothing in our probate law which 
would, either expressly or by implication, exempt 
the property of this estate from the requirement 
of administration. The whole subject matter of 
dealing with the estates of deceased persons is 
one of statutory regulation, and the policy and 
intent of our statute very clearly contemplates 
that property of decedents left undisposed of at 
death (except in the instance of the homestead, 
acquired under certain circumstances as provided 
for in Section 1474 of the Code of Civil Procedure) 
shall for the purposes of ascertaining and protect- 
ing the rights of creditors and heirs, and properly 
transmitting the title of record, be subjected to 
the process of administration in the probate court. 
Indeed, there is no other method provided by the 
statute whereby the existence of creditors or heirs 
of decedents may be conclusively established." 

"Probate proceedings being purely statutory, 
and therefore special in their nature, the 



187 



Superior Court, although a court of general 
jurisdiction, is circumscribed in this class 
of proceedings by the provisions of the statute 
conferring such jurisdiction, and may not compe- 
tently proceed in a manner essentially different 
from that provided. (Smith vs. Westerfeld, 88 
Cal. 374, 379.)" 

In this case reference is made to 112 Cal. 14, from 
which the following is quoted: 

"We know of no such authorized method under 
the law of dispensing with the usual and ordinary 
administration of an estate of a deceased person, 
or of thus determining the question of title to 
real property as between an estate and persons 
claiming adversely to it. Under the facts ap- 
pearing, it was the duty of the court to proceed 
and appoint an administrator with the will annexed, 
to complete the administration." 

"The only way to establish heirship would be 
by proceedings in probate. (Estate of Conroy, 6 
Cal. App. 741.) The probate court has exclusive 
jurisdiction to determine matters involved in a 
distribution. Independent action in equity gets 
no jurisdiction. (Estate of Freud, 134 Cal. 333.) 
'Through a decree of distribution only can title 
to land be justly established.' (Blair vs. Hazzard, 
158 Cal. 721.) See, also: 152 Cal. 129; 129 Cal. 148, 
and Goad vs. Montgomery, 119 Cal. 552, which de- 
cide that a coordinate court has neither control- 
ling nor advisory jurisdiction over the probate 
court. Also see Trout vs. Ogilvie, 41 Cal. App 
167, for statement of law covering this question." 

COURT CAN DETERMINE ASSETS: 



Probate court can determine as between heirs if prop- 
erty is asset of estate or not (Estate of Simonton, 59 Cal. 
Dec. 588), but not as between heirs and strangers. (164 Cal. 
274; 40 Cal. 124.) 

COURT CANNOT TRY TITLE: 

The case of Anderson vs. Fisk, reported in 41 Cal. 
308, decided that 

"a probate court has no authority on petition 
of an executor to order him on receipt of the 
money loaned to reconvey real estate conveyed 
to his testator by deed absolute on its face 
but intended only as security for the repayment 
of such money. " 



188 



The probate court is not a court of equity. (131 
Cal. 73; 135 Cal. 323; 136 Cal. 598.) 

WILL DEFINED ; 

A will or testament is the disposition of property 
to take effect at the death of the testator or maker. 

WHO MAY MAKE A WILL; 

Every person of sound mind, over 18 years of age, 
may make a will and dispose of real and personal property 
unless the maker is actuated by duress, menace, fraud or undue 
influence. 

A married woman may dispose of her separate property 
by will as though she were single. 

All property or interest therein owned at death may 
be willed except for the special provisions regarding commu- 
nity property of husband and wife. (See separate paragraph.) 

Any person capable at law to hold property may take 
under a will, except that no corporation, other than counties, 
municipalities and corporations formed for scientific, liter- 
ary or solely educational or hospital purposes, can take prop- 
erty by will unless authorized by statute. 

DIFFERENT KINDS OF WILLS : 

The law allows the admittance to probate of several 
kinds of wills with certain requirements as to each kind. 
They are : 

(1) WRITTEN WILL: 

This must be in writing, subscribed by the testator 
or by some person for him in his presence and by his direction, 
with two attesting witnesses signing at the testator's request 
and in his presence and each writing also his address, and 
they must not be interested under the will on pain of losing 
their devise or legacy. 

(2) HOLOGRAPHIC WILL: 

This must be written, dated and signed entirely by 
the testator. There are no formalities required. 

(3) NUNCUPATIVE WILL : 

This is sometimes called the spoken will. It need 
not be in writing and requires no formalities, but the prop- 
erty disposed of must not exceed $1,000.00. It must be proved 
by two witnesses who were present and were asked by the 



189 



testator to bear witness that it was his will. It must be 
reduced to writing within 30 days and offered to the court 
within 6 months, and the decedent must have been in active 
military or naval duty at the time and in peril or contem- 
plation of death. 

(4) CONDITIONAL WILL: 

This kind of will is valid with reference to the 
happening of the condition upon which it is predicated. 

(5) MUTUAL WILL : 

Made conjointly, usually by husband and wife, but 
may be revoked by any of the makers at any time. It requires 
the formalities of a written will. 

JOINT WILL: 

One who goes into agreement with another to make a 
conjoint or mutual will does so with statutory notice that 
such a will is subject to revocation under 1279 C. C. (Estate 
of Rolls, 67 Cal. Dec. 445.) In this case husband and wife 
made a mutual will. The husband died and the wife made a 
separate will thereafter. The mutual will was probated. 
The court found the separate will of the widow revoked the 
will as to her. One-half the estate was distributed under 
the mutual will, the other half, the widow's community 
share, was subject to her testamentary disposition. While 
a joint disposition of property is irrevocable in equity as 
a contract, as a will it is revocable by either. If either 
die without revocation the will becomes his last and sepa- 
rate will. The probate court could not enforce the mutual 
will as a contract. Equity might uphold the contract in the 
interest of the original beneficiaries and declare the dis- 
tributees under the separate will to be trustees for said 
beneficiaries. (183 Cal. 359; 175 Cal. 81; 181 Cal. 336.) 
Meanwhile an innocent purchaser for value from the distribu- 
tees would be protected. 

REVOCATION OF WILL: 

A will may be revoked by a writing of the testator 
declaring such revocation or alteration, executed with the 
same formalities as a written will, or by being canceled 
or destroyed purposely by the testator. 

A will made before marriage is revoked by marriage 
or by birth of issue, when wife or issue survives the tes- 
tator, unless provision has been made for such issue or the 
will shows such provision is intentionally omitted. 

A will made before marriage is revoked by marriage 
if the wife survives the testator unless provision is made 



190 



for her by marriage contract, or in the will, or unless 
the will shows she is intentionally omitted therefrom. 



A will by a woman is revoked by her marriage there- 



after. 



Revoking a will annuls all its codicils. 

EFFECT OF SUBSEQUENT CONVEYANCE _0N A WILL: 

Where testator makes contract of sale of property 
devised, the devisee takes subject to the contract. 

Where testator mortgages property devised, the 
devisee takes subject to the mortgage. 

Where testator deeds property devised, the devise 
is revoked entirely, but a deed for a portion of his prop- 
erty does not revoke his devise as to the remainder uncon- 
veyed. 

CHILD UNPROVIDED FOR: 



A child unprovided for by settlement or unmentioned 
in the will succeeds to so much of the estate as would be 
his had the parent died intestate, unless such omission 
is intentional. 

INHERITANCE BY REPRESENTATION: 



If a child or other relative of the testator dies 
before him, the lineal descendants of the devisee take the 
estate willed. 

AFTER ACQUIRED PROPERTY : 

All property owned by testator at his death passes 
by will whether acquired before or after making the will, 
unless the will expresses a contrary intention. 

CHARITABLE BEQUESTS : 

Not good unless the will was made thirty (30) days 
before death of testator. Such bequests or devises must not 
collectively amount to more than one-third of the estate. If 
they exceed one-third they are not void, but must be reduced 
proportionally. Exception to this provision exists in favor 
of the State or any institution of the State. 

FOREIGN WILLS: 

A will admitted to probate in any other State or 
foreign country, or a copy duly authenticated, may be pre- 
sented and admitted to probate in this State without fur- 
ther proof of due execution. 



191 



AFTER DISCOVERED WILL : 

May be admitted to probate even after a previous 
distribution. (Estate of Walker, 42 C. D. 194.) 

REMAINDERS , VESTED OR CONTINGENT: 

A remainder is vested when the taker is in existence 
and whose right no contingency can defeat to take on expira- 
tion of prior estate. It is contingent when it depends on 
the happening of an event which may never take place. It 
is vested when there are words of "present gift" to a class 
of persons in existence, though it cannot be determined 
which, if any, members of the class will ultimately take. 
(11 Cal. App. 735, Estate of Washburn.) 

INHERITANCE BY ALIENS : 

Resident aliens may take by succession as citizens. 
A non-resident foreigner must appear and claim his succes- 
sion within five (5) years after death of the decedent. 

JURISDICTIONAL REQUIREMENTS (1294 C^ C^_ P.) : 

Wills must be probated and letters testamentary or 
of administration issued by the probate court. 

(a) If a resident of California, in the county of 
which the decedent was a resident when he died. 

(b) If a non-resident of California, in the county 
where the decedent died leaving estate therein. 

(c) In any county where the decedent owns property 
if he died out of the State and was a non-resident. 

(d) In any county where decedent owns property, 
being a non-resident but not leaving estate in the county 
where he died. 

(e) In other cases where application for letters 
is first made. 

Death and residence constitute the jurisdictional 
facts which must be properly shown to give the court authority 
to proceed. (7 Cal. 233.) 

ESTATE OF LIVING PERSONS : 

Proceedings had on the estate of a person proved 
later to be alive are void. The oourt has no jurisdiction 
till the estate owner is deceased. The supposed decedent 
may have such proceedings set aside. (61 Cal. 60.) 



;ei 



192 



PERIOD FOR CONTEST OF WILL; 

The validity of a will may be contested at any time 
within one year after admission to probate, except as to 
minors and incompetents who have one year from removal of 
disability. 



•• 



. 



193 



ADMINISTRATORS AND EXECUTORS 



APPOINTMENT AND QUALIFICATION: 

The appointment of an administrator is a proceeding 
in rem (147 Cal. 343). He must give bond before letters are 
issued (79 Cal. 16, 112 Cal. 260). Bonds must be payable to 
the State of California and must be joint and several (958 
Pol. Code). Bond must be signed by principal (101 Cal. 125), 
but administration without bond is not void (81 Am. St. Rep. 
554). Bond may be filed after letters issue (112 Cal. 267). 
The giving or not giving of bond is not subject to collateral 
attack. (101 Cal. 125; 44 Ohio 637; 9 Utah 101; 81 Ala. 548.) 

Order appointing administrator made upon petition 
setting forth the jurisdictional facts is tantamount to an 
adjudication of the existence of such facts. (84 Cal. 107.) 

Petition for letters not signed by applicant was 
held good in Baxter vs. Booge. (52 Cal. Dec. 493.) 

No letters issued though administrator was appoint- 
ed. Proceedings not invalidated because clerk failed to per- 
form ministerial duty. (122 Cal. 39; 120 Cal. 350; 115 Cal. 152.) 

Letters of administration, if good on their face, are 
conclusive against collateral attack even if oath and bond 
are defective or absent entirely. (Dennis vs. Bint, 122 Cal. 
39; 173 Cal. 589.) 

The appointment of an executor is proven by intro- 
duction of the letters. (134 Cal. 237; 183 Pac. 222.) 

Section 1373 C. C. P. providing for notice of hear- 
ing petition for letters of administration has been amended 
so as to require that notice of hearing be mailed to the 
heirs of the decedent named in the petition at least ten 
days before the hearing. (1921.) 

Marriage before or after appointment does not af- 
fect a woman's qualification to act as administratrix or 
executrix. 

Where record does not show that letters of adminis- 
tration were issued. (See 39 Am. Dec. 326; 122 Cal. 39; 33 Am. 
Dec. 299; 7 Cal. 215.) 

SPECIAL ADMINISTRATORS: 

Special administrators are appointed without notice. 
Their powers are limited and must be set forth in the court 
minutes showing the appointment. When an estate needs im- 
mediate attention a special administrator may be appointed 



194 



to act until the appointment of the general administrator, 
upon which his authority ceases. 

A special administrator may be made defendant in 
a suit to quiet title (157 Cal. 373) with the same effect as 
against a general administrator. 

Sections 1412-1415 C. C. P. relative to the appoint- 
ment and duties of special administrators have been amended 
to provide that when a special administrator is appointed 
pending determination of a contest of a will instituted 
prior to probate thereof or pending an appeal from an order 
appointing, suspending or removing an executor or adminis- 
trator, such special administrator shall have the same 
powers, duties and obligations as a general administrator 
and the letters of administration issued to him shall re- 
cite that such special administrator is appointed with the 
powers of a general administrator. Said Section 1412, as 
amended, provides that such notice of hearing of petition 
for appointment as the court may deem reasonable shall be 
given. (1921.) 

ONLY ONE ADMINISTRATOR: 

Appointment of new administrator, former one not 
removed or his resignation accepted, is void. (20 Cal. 288, 
140 Cal. 194, 84 Cal. 110, 120 Pac . 767.) Where there are 
more than two executors, the majority may act. Where there 
are two, one may act if the other is absent from the State 
or under disability or if he gives the other authority in 
writing. 

ADMINISTRATION AFTER DISTRIBUTION; 

An administrator may continue to perform the duties 
of his trust after distribution and until discharged. (51 
Cal. 146, 60 Cal. 260. ) 

PUBLIC ADMINISTRATOR: 

The public administrator may continue to act after 
expiration of his term of office. (11 Cal. 120, 34 Cal. 468, 
100 Cal. 80, 146 Cal. 591.) He must be specially appointed 
in each estate in which he acts. He can be appointed as a 
special administrator. He needs no special bond besides 
his official bond, but an additional bond may be required 
when he sells real estate. 

FOREIGN ADMINISTRATOR: 

Appointed in another State has no authority to act 
in California. (1913 C. C. P.) He cannot assign a mortgage on 
property in another State. (54 Am. Rep. 386.) He can release a 



195 



mortgage in this State by complying with Section 2939^ C. C. 
(89 Cal. 348, 79 Cal. 278, 70 Cal. 403.) 

ADMINISTRATOR WITH WILL ANNEXED: 

Has power to sell under the will. (80 Cal. 89.) 

PROOF OF RESIDENCE: 

An order of court granting letters of administration 
is a final adjudication of fact of residence. (Estate of 
Ralph, 61 Cal. Dec. 559.) 

ACTIONS AGAINST: 



An executor may voluntarily appear in an action. 
(132 Cal. 453.) 

When an administrator is sued the complaint must 
contain proper averments to bind the estate. (77 Cal. 257, 
139 Cal. 623, but see, also, 72 Cal. 547.) 

An administrator may stipulate for judgment (123 
Cal. 674). A compromise by administrator in this case was 
upheld. 

DEDICATION OF MAP BY EXECUTOR : 

An executor cannot dedicate highway as against heirs 
(50 Cal. 471). He cannot give away property of estate (74 
Cal. 436). 

PARTITION: 

An administrator cannot bring an action for parti- 
tion (126 Cal. 482). Power to sell given executor or trus- 
tee does not authorise a partition (134 Cal. 657, 2348 C. C. P., 
14 Am. St. 773). 

CANNOT DISCLAIM OWNERSHIP : 

An executor cannot admit his testator held only as 
trustee (112 Cal. 387) or as mortgagee (41 Cal. 308, 88 Cal. 
374). The court has no power to order administrator to re- 
convey property held in trust to secure debt under deed 
absolute (41 Cal. 308). 

PROPERTY WRONGLY INVENTORIED: 



This may be corrected by filing a second inventory 
which shows true condition of the estate. (100 Cal. 158, 169.) 



196 



FOREIGN CORPORATION AS TRUSTEE UNDER WILL: 

Michigan Trust Company named in will as trustee 
may take distribution of estate under Sec. 7 of Bank Act, 
which is upheld as constitutional, having qualified by 
filing copy of its articles with Secretary of State and 
Superintendent of Banks. Re Estate Josephine Wellings vs. 
Bronson, Supreme Court decision December, 1923. 

PROBATE HOMESTEAD : 

This is a homestead set apart by the court in a 
probate proceeding where no homestead has been declared in 
the lifetime of the decedent which on death will vest abso- 
lutely in the survivor. The property is taken out of the 
legal channel of devise or succession and a new title is 
created by the court order itself. 

It can be set apart only when there is a surviving 
husband or wife or minor children, so that if the widow 
should remarry or the children attain majority before having 
such a homestead created, their respective rights would be 
lost to them. 

The title on creation vests in the surviving hus- 
band or wife and the minor children if there are any. If 
both parents are deceased then title vests in the minor 
children entirely. 

Although the husband cannot declare a homestead 
upon the separate property of the wife in her lifetime with- 
out her consent, a probate homestead can be carved out of 
such property by the court on her decease, but where the 
separate property of the decedent is set apart it can be 
assigned only for a limited period and the property affected 
vests in the heirs or devisees subject to administration 
(1468 C. C. P.) and subject to the effect of the limited pro- 
bate homestead. 

A probate homestead taken from community property 
vests as follows: 

(a) If decedent left a surviving spouse and no 
minor children, title vests in said spouse. 

(b) If decedent left a surviving spouse and a 
minor child or children, title vests one-half in said 
spouse and one-half in the minor child or children. 

(c) If decedent left no surviving spouse, but left 
a minor child or children, title vests entirely in the minor 
child or children. 

As each child comes of age he retains his vested 
interest in the property subject to the homestead interest 



197 



and right of possession of the widow and other minor chil- 
dren. He can deed or mortgage his interest, but it will re- 
main subject to said homestead rights. So, also, can the 
widow (133 Cal. 99), but on foreclosure of her mortgage 
the purchaser would take her half of the property as tenant 
in common with the other owners, subject to the homestead 
interests of the minor children v/ith no right to possession 
until the youngest minor had come of age. 

The interest of a minor child is subject to sale by 
his guardian with like effect. (120 Cal. 421.) 

When the youngest child reaches majority, the widow 
and children can convey the property clear of the widow's 
remaining homestead right - or they could maintain a suit 
in partition. 

SECTION 1469, C. C. P. : 



When the value of the entire estate of the decedent 
does not exceed $2500 (since amendment in effect July 29, 
1921) or did not exceed §1500 prior to said date, the court 
may set off the whole estate to the surviving widow or minor 
children, subject to existing liens, debts and incumbrances 
and there shall be no further administration. 

The order of assignment creates a new title in the 
assignee. So a quitclaim deed from the widow prior to the 
order would not be sufficient to pass a good title. A grant 
deed would be good. * This order is a final judgment and not 
open to collateral attack (63 Cal. 16, 149 Cal. 98, 162 Cal. 
433). In Eisenmayer vs. Thompson (62 Cal. Dec. 127) an at- 
tempt was made to set aside such an order made more than a 
year previously on the ground of fraud, the estate being 
worth much more than $1500. The Appellate Court held the 
original order was final and conclusive, reversing the trial 
court, and that testimony disputing the finding of the pro- 
bate court could not be admitted. 

The Court has power to set aside to the widow, under 
this section, property upon which a homestead has been de- 
clared. (Est. of Neff, 139 Cal. 71.) 

This section applies to the separate property of 
husband or wife or to community property and a wife's estate 
can go to the minor children without further administration. 
(Est. of Leslie, 118 Cal. 72.) 

Setting aside property to widow under 1469 C. C. P. 
held not invalid although no inventory was filed, under 
analogy of 171 Cal. 583 (Est. of Betts). 
PROBATE SALES AND CONVEYANCES : 

If an estate is solvent, the family allowance, ex- 



198 



penses of administration and debts must be paid before es- 
tate is closed. If there is not cash available, property 
must be sold to raise funds. 

Personal property must be sold first, then the 
realty. A sale of real property may also be made when it 
is shown to have been for the best interests of the estate. 

Petition for order of sale must be verified. (116 
Cal. 575.) 

Notice of sale of real estate by administrator must 
be published up to day of sale. (112 Cal. 661, 121 Cal. 524.) 

Power to sell given in the will is not good as to a 
pretermitted heir. (88 Cal. 582.) 

Commission may be allowed paid to agent on sale. 
(26 Cal. 113.) 

A sale of devised property "for the best interests 
of the estate" is good after 1893 and may be passed 60 days 
after confirmation or when the specific devisee files a 
waiver of objection. (129 Cal. 86, 191 Pac. 678.) 

The estate in remainder vested in the heirs subject 
to a probate homestead is salable by administrator. (139 
Cal. 149, 145 Cal. 236. ) 

Sale by executor under power in will is subject to an 
increased bid in court. (85 Pac. 155.) 

Assignment of mortgage by administrator amounts to a 
sale of personal property. An assignment without order of 
court was invalid. (131 Cal. 62, 1517 C. C. P.) 

A sale of personal property may be made, but must be 
confirmed. (1523 C. C. P., Stat. 1921, p. 193.) 

Husband cannot by will authorize sale except to pay 
debts. (120 Cal. 89, 25 Cal. 13.) 

Administrator with will annexed has not power of sale 
as executor. (130 Cal. 169, 80 Am. Stat. 89.) 

Executors can convey without confirmation of sale 
where property has been devised to them in trust. (49 Cal. 76, 
92 Cal. 183, 144 Cal. 126.) 

EXECUTOR'S SALE TO DUMMY FOR SELF: 

Oklahoma case, Gay vs. Williams, 219 Pac. 906, on 
Oct. 23, 1923, where guardian deeded and purchaser conveyed 
to guardian as individual 63 days later, who deeded to others. 
Held void at suit of ward. 



199 



Order to mortgage is good even if it contains power 
of sale, but Code does not authorize order to make a trust 
deed. (See Sec. 2932 C. C. ) 

Section 1551 C. C. P. relative to sale by executor 
or administrator upon credit has been amended to provide that 
the purchase money notes shall be secured by either a mort- 
gage or deed of trust. (Stat. 1921, p. 209.) 

PROBATE SALES : 

The amendments of July 22, 1919, governing sales 
were upheld by Supreme Court in re Estate of Benvenuto on 
July 27, 1920. The notice given by filing returns of sale 
is due process of law and interested parties may then ask 
for additional bond to be given. (60 Cal. Dec. 115.) 

These amendments are applicable to all proceedings 
subsequent to enactment. 

WIFE'S COMMUNITY INTEREST; 

Sale under code provisions carries and includes this 
interest, but it is unsafe to so assume on sale by executor un- 
der power in will unless to pay debts. Sale under power in 
the will is not judicial. (98 Cal. 603, 102 Cal. 569.) 

Return of sale by administrator when not verified 
good against collateral attack. (63 Cal. 16.) 

LEASE BY ADMINISTRATOR: 

Is subject to any judgments against heirs of de- 
cedent. Sec. 1555 C. C. P. gives purchaser at probate sale 
title as at decedent's death, but the statute does not so pro- 
tect a lease. 

COMPLETION OF CONTRACT TO BUY: 

Payment to administrator of balance due by decedent 
to vendor without permission of Court is not improper, but is 
subject to investigation on settlement of accounts by the 
court. (Est. of Bottoms, 156 Cal. 129.) 

Court cannot order administrator to convey on verbal 
contract of decedent. (49 Cal. 469.) 

Orders of confirmation should recite order of sale, 
if prior to amendments of 1919, return of sale, person to 
whom sold; that notice of sale had been posted and published, 
and notice of hearing of confirmation has been posted, and it 
should order that the sale be confirmed to the person pur- 
chasing, and order conveyance to be executed to him upon pay- 
ment of the purchase price. (Sec. 1555 C. C. P. as amended 



. 



200 



and effective July 22, 1919, does not require any reference to 
an order authorizing sale.) 

Where a sale is made under a power contained in the 
will, notice of sale need not be published or posted, and 
consequently the order need not recite proof of publication 
and posting of notice of sale. 

A conveyance by an administrator, guardian, executor, 
etc., must refer to the order authorizing and confirming the 
sale of the property, and to the record of the certified copy 
of confirmation in the office of the County Recorder, either 
by date of such record, or by volume and page of record. 

Such a deed cannot be legally executed until after 
such order of confirmation has been filed for record, or un- 
less the copy of the decree is recorded at the same time with 
the deed. (See Sec. 1555 C. C. P.) 

A deed from an executor under power in the will does 
not require any recital as to authority given. (30 Cal. 568.) 



JUDGMENTS AGAINST DECEDENT; 



No execution may issue after death of debtor on a 
money judgment docketed prior thereto. The judgment does 
not cease as a lien and must be presented to the administra- 
tor or executor for payment as other debts. 

If execution has been actually levied prior to the 
death, sale may be made thereafter. 

A debt secured by a lien has precedence only as to 
the property covered by the lien and any deficiency ranks as 
a general claim. 



201 



CLOSING AND DISTRIBUTION 



The decree of distribution does not create any new 
title. By it the title is declared and established in the 
persons who take by the laws of succession or under the will. 
The actual transfer dates from the time of death, at which 
moment the title passes and vests. 

Distribution cannot be made until the accounts are 
settled (88 Cal. 374, 122 Cal. 528), nor after administrator 
is discharged (175 Cal. 199). 

CONCLUSIVENESS OF DECREE (1666 C. C. P.) ; 

A decree of distribution of an estate, after due 
notice by the probate court, is conclusive upon a person 
who might have claimed that a share of the estate belonged 
to him. (Crew vs. Pratt, 119 Cal. 149.) 

"The distribution of the estate includes the deter- 
mination of the persons who, by law, are entitled thereto, 
and also the proportions or parts to which each of these 
persons is entitled. . .By giving the notice directed by the 
statute, the entire world is called before the court, and 
the court acquires jurisdiction over all persons for the 
purpose of determining their right to any portion of the 
estate ; and every person who may assert any right or in- 
terest therein is required to present his claim to the 
court for its determination. Whether he appear and pre- 
sent his claim, or fail to appear, the action of the court 
is equally conclusive upon him 'subject only to be reversed, 
set aside, or modified on appeal'. The decree is as binding 
upon him, if he fail to appear and present his claim, as 
if his claim after presentation had been disallowed by the 
court. " 

(William Hill Co. vs. Lawler, 116 Cal. 359, cited 
in Mulchaney vs. Dow, 131 Cal. 77. ) 

It is within the jurisdiction of the court to deter- 
mine what persons had legal or equitable rights to the dis- 
tributable property of the estate and the extent and nature 
of their interests, when the decree does so determine them, 
although the determination may be incorrect, it is conclu- 
sive as to the rights of heirs, legatees, and devisees un- 
less corrected on appeal. (Luscomb vs. Fintzelberg, 162 
Cal. 438, and cases therein cited. ) 

SUBJECT TO REVIEW IN EQUITY: 

Although the decree of distribution has been held to 
"bind the whole world" (119 Cal. 150) it was held in 156 Cal. 
510 that the rights of a grantee in a deed from an heir, 



202 



made before distribution conveying his interest in the estate, 
were paramount and that the decree did not affect rights so 
acquired, the decree being conclusive as to the right of suc- 
cession or under a will only. 

There is also the decision in 150 Cal. 477 that "a 
decree of distribution is subject to review in equity upon a 
showing that it was procured by extrinsic fraud or mistake" 
and that the distributee became an involuntary trustee against 
whom the trust could be enforced. 

WILL MEASURED BY DECREE : 

The rights of the devisees under the will are to be 
determined and measured by the terms of the judgment and not 
by the terms of the will. The will cannot be used to impeach 
the decree (19 Cal. 557). The will may be incorporated in the 
decree (79 Cal. 613, 119 Cal. 558) . Where the decree dis- 
tributes according to the provisions of the will and so states, 
the will must be looked to for the purpose of construing the 
order (177 Cal. 660). 

DISTRIBUTION TO HEIRS OF OR GRANTEE OF HEIR: 

Court has power to distribute to grantee of heir 
(93 Cal. 459). Such order may be attacked for fraud (6 Cal. 
App. 434), as when deed was made to defeat judgment against 
heir (20 Cal. App. 234). The judgment creditor of heir not 
being before Court, distributee took subject to the judg- 
ment (137 Cal. 354). Such decree is not estoppel against 
equitable claimants (133 Cal. 489) . The court cannot liti- 
gate validity of the conveyance (161 Cal. 152, 53 C. D. 417). 

An assignment executed and filed before distribution 
operates as a transfer of all interest of an heir at law in 
the estate (Est. of Hayne, 165 Cal. 568). The instrument 
of transfer should be filed in the Recorder's office or with 
the probate papers, but if not then the decree will stand 
good after 60 days. 

Distribution to heirs of a deceased heir held good 
without administrating estate of latter, finding of heirship 
having been final. (Warren vs. Ellis, 179 Cal. 544, 167 
Cal. 473.) 

Distribution to assignee of heir or devisee held ultra 
vires in 53 Cal. Dec. 417. But 1678 C. C. P. authorizes dis- 
tribution to grantee under a conveyance (137 Cal. 354, 
153 Cal. 489), though a judgment against the original heir 
will attach. 

A devisee dies - on distribution in original estate, 
Court found the death and determined who were heirs of the 
deceased heir. No independent proceedings held to be neces- 



203 



sary under authority of De Leon estate. (102 Cal. 537.) 

Distribution may be made to heirs of deceased spouse 
by name. (65 Cal. 523.) 

When a devisee dies before testator, his lineal de- 
scendants take. (1310 C. C. as in effect July 29, 1921.) 

ADJUSTMENT AMONG HEIRS : 

Probate court has no authority to adjudicate dis- 
puted claims among heirs or to deduct from an heir's inter- 
est a debt, due decedent. (Estate of Pollito, 51 C. A. R. 
752, decided March 17, 1921. Rehearing denied.) 

RIGHTS OF LIFE TENANT ; 

Has no power to consume the principal unless em- 
powered (see Hardy vs. Mayhew, 158 Cal. 95), where "the 
unused portion" only went to remaindermen and life tenant 
could therefore consume the corpus. 

Is a quasi-trustee for remaindermen. (Perry on 
Trusts, Sec. 540.) 

May make agreement of sale when power of sale is 
granted if she deposits deed in escrow, because if she die 
before payments are all made, still the deed when delivered 
will date back to deposit in escrow. (62 Cal. 496.) 

Need not sell for cash unless expressly directed, 
but consideration must be valuable. (154 Cal. 145.) And 
may take purchase money mortgage back. (Perry on Trusts, 
Sec. 786a.) 

A decree of distribution to widow for life, remain- 
der to son and daughter, creates a vested remainder, which 
does not lapse by death of daughter. (Miller vs. Oliver, 
35 Cal. App. Dec. 290.) 

Upon release of a mortgage by the life tenant, the 
money may be paid to such tenant without seeing to preser- 
vation of the proceeds for the remaindermen. (108 Cal. 463.) 

Identity of heirs may be established. (Stat. 1921, 
p. 988.) 

INTEREST ON LEGACY : 

Ruling case is 112 Cal. 521, Est. of Williams. Spe- 
cific legacies are due in one year and bear interest there- 
after. The judgment of distribution bars the claim if not 
previously made. (Est. of Schmirer, 168 Cal. 748.) Simple 
interest only. (66 Cal. 157.) (See 1369 C. C. and 1368 C. C. 
for provisions of statute. Also Coffey's Probate Decisions, 
6, p. 368.) 



204 



OMNIBUS CLAUSE ; 

Where the decree distributes in addition to property- 
described "any other property not now known or discovered 
which may belong to said estate or in which said estate may 
have any interest" the title to property nowhere mentioned 
in the proceedings as an asset of the estate passes to the 
distributees named. (154 Cal. 170, 83 Cal. 344.) 

PARTIAL DISTRIBUTION; 

Can be made only on petition of an heir or devisee, 
the executor or administrator cannot ask for it. (74 Cal. 
311, 133 Cal. 655.) 

LAWS OF SUCCESSION; 

For statement as to the heirs of a decedent and their 
respective interests, see 1386 C. C. 

PROOF OF DEATH ; 

This may be proved in three ways: 

(a) Prior to 1905, Sec. 3074 et seq. of the Political 
Code provided that certificates of death filed by undertakers 
and others were good evidence of the facts stated. The laws 
were amended in 1905 making the filing of such certificates 
impossible and in that year (Stat. 1905, pages 105 and 115) a 
State Registrar was appointed at Sacramento and local regis- 
trars of vital statistics were also appointed for each county 
and for each charter-governed city, and under this act a cer- 
tificate from the registrar was made evidence of death and 
could be accepted as such. By the amendment of 1911, the 
certificate of the local registrar was also made legal evi- 
dence. This act is very insistent upon the regularity of 
the certificate as to form and provides that no certificate 
shall be held to be complete and correct that does not sup- 
ply all of the items specified as being necessary or satis- 
factorily account for the omission thereof. A new Vital 
Statistics Act, No. 4302, approved May 19, 1915, repeals 
prior act and creates State and local registrars of vital 
statistics. Under this act, the recorder of each county 
and the health officer in cities operating under a free- 
holders' charter and the clerk of other cities are made 
local registrars. Section 7 of the act prescribes what 
the death certificate must contain and Sec. 18 provides that 
only official blanks or forms shall be used. Under Sec. 21, 
a copy of the record, properly certified, is made prima facie 
evidence in all courts and places of the facts therein stated. 

Practically a new act came into effect July 27, 1917, 
which materially alters the old acts and under this new act 



205 



the following appear to be the chief items worthy of note: 

State Board of Health to maintain a bureau of vital 
statistics directed by a State Registrar. 

The State is divided into registration districts as 
follows : 

Each city and county, city and incorporated town is 
a primary registration district, each county outside of above 
may be subdivided by the State Registrar into primary rural 
registration districts. 

The clerk of each city and county, city and incorpo- 
rated town is local registrar, provided that in the cities 
with freeholders' charter, the health officer may act as 
local registrar. The State Registrar with approval of State 
Board shall appoint a registrar for each primary rural dis- 
trict for term of four years. Each local registrar to ap- 
point a deputy. Local rural registrars to send copies to 
County Recorder of their records. Local registrars, with ap- 
proval of State Board, may appoint sub-registrars when neces- 
sary. 

Sets out requirements (20 items) in full of death cer- 
tificates and provides that all items are necessary for legal 
registration records. 

State Registrar to prepare blanks and no other forms 
to be used. 

State or local registrars to supply to any applicant 
a certified copy of the record for fifty cents and same, 
properly certified, shall be prima facie evidence in all 
courts and places of the facts therein stated. 

(b) Proof of death may be considered to be properly 
established also by the facts that letters testamentary or 

of administration have issued in a probate proceeding upon 
the estate of decedent although the property under search 
is not mentioned therein. The identity of the decedent with 
the person to be proved dead should be established by affi- 
davit. 

(c) Sec. 1723 C. C. P. was enacted for the purpose of 
proving death. It could do not more prior to 1921 than es- 
tablish decease. Property owned of record by a married woman 
under 164 C. C. could not be found to be community property 
and therefore vested in her husband upon her death. The court 
cannot try the title. (136 Cal. 385, 148 Cal. 157.) 

The amendment of 1921 became effective July 29, 1921. 
The amendment purports to confer jurisdiction upon the court 
to vest title to homestead property and community property. 



206 



When the fee title to homestead property vested in the de- 
ceased spouse, or where the title to community property is 
concerned, a judgment rendered pursuant to said section as 
amended, and purporting to vest title to such homestead prop- 
erty in the surviving spouse or purporting to vest title to 
community property in the surviving husband, should not be 
construed as valid unless an administrator or executor has 
been duly appointed to represent the estate of the deceased 
spouse and service shall have been duly made upon such repre- 
sentative as provided for by said amended section. However, 
such proceedings will be deemed sufficient in the event that 
the estate of such deceased person has been duly administered 
upon by the probate court, decree of distribution with omni- 
bus clause having been rendered therein and the residuary dis- 
tributee under such omnibus clause having been duly served 
with notice of the proceedings as required by said amended 
section. 

Sec. 1723 C. C. P. has the advantage in that it covers 
proof of death out of the State, which the California Vital 
Statistics Act does not, and it settles also the question of 
any inheritance tax which may attach if the interest presumed 
to pass by the death comes within the purview of the act. 

AFFIDAVIT: 

A good form to use to establish identity of decedent 
with person in search is as follows: It should be adapted 
to suit the particular circumstances of each case and recorded. 

State of California, ) 
County of ) 

John Doe, a resident of said county, of legal age, be- 
ing first duly sworn, does depose and say: 

I was well and personally acquainted with 

in his lifetime, being his (brother-in-law, or neighbor, or 
state source of intimacy) , and know him to be the grantee in 
a certain deed dated (describe deed) conveying property known 
as (describe property) , and I know him to be the same person 

mentioned in a certain Declaration of Homestead made by 

as his wife, recorded in book , p. 

of homesteads ; I further declare that said died on or 

about at in said county and is the same 

identical person referred to in the certificate of death 
(hereto attached, or recorded in Recorder's office) and left 
surviving him his said wife 



Subscribed and sworn to before me, 
this day of , 1916 . 

Notary Public in and for the said 
County of , State of Cali- 
fornia. 
(N. P. Seal) 



207 



INHERITANCE TAX 



Succession is a privilege and taxable by the power 
that grants it as distinguished from an executed grant which 
is property, a right protected by constitutional guarantees. 
(Garms Est., 162 Pac. 639.) The tax is a vested right which 
the State cannot waive. (Est. of Lander, 5 App. 573.) 

STATE TAX: 

Original Act 1893 applying only to collateral heirs. 
Amended in 1905 to apply to direct heirs. By amendments of 
1911 and 1913 exemptions were raised and rates reclassified. 
Annual revenue from this tax is between 3M> and 4 million dol- 
lars, a portion going to support of schools, balance to the 
State. In 1915 rates were increased. In 1917 the wife's half 
of the community property was exempted, prior to which the 
husband paid no tax on his own interest or on that vested in 
him by his wife's death. The State Controller maintains 
offices at Sacramento, San Francisco, and Los Angeles, with 
tax attorneys in charge with appraisers in each county of 
the State, one of whom must be appointed in probate court 
appraisements. The tax is upon the "clear market value" of 
the property of the decedent, from which is deducted expenses 
of last illness and funeral, legal claims against the es- 
tate, taxes, attorney's fees, commissions of administrator 
and fees. 

To secure uniform operation this tax falls on all 
property which passes to its recipients by reason of its 
former owner's death whether it goes through the probate 
court or not, and includes transfers made without considera- 
tion and deeds made to avoid administration in court. 

The tax is graduated according to relationship and 
value. Exemptions are allowed to widow or minor child, 
$24,000.00; to husband, lineal issue and ancestor or adopted 
child, $10,000.00; to brother, sister, daughter of either, 
wife or widow of son, husband of daughter, $2,000; uncle, 
aunt or descendants of either, $1,000; others as specified, 
$500. 

Stock in California corporations owned by non-resi- 
dent decedents is taxable, such as Standard Oil Company of 
California, which is held 90 per cent by non-residents; the 
estates of Harkness, Flagler & Archbold paid over IX millions 
to the State in inheritance taxes. 

As to whether a transfer by deed is subject to the tax, 
the date of delivery governs. (170 Pac. 402, 162 Pac. 639.) 
The tax follows "transfer by the homestead laws" or any pro- 
bate homestead set apart. 



208 



By the amendment in effect July 29, 1921, the line of 
the tax follows the proceeds instead of the property sold. 

WIFE'S SHARE OF COMMUNITY PROPERTY LIABLE FOR TAX: 

The surviving wife's share of the community property 
of herself and her deceased husband is subject to the payment 
of the inheritance tax imposed by the Act of March 20, 1905, 
etc. (Est. of Moffitt, 153 Cal. 359.) 

Use this form, adapted to suit, in case of a deed 
under suspicion of liability: 

Any lien for inheritance tax due the State of Cali- 
fornia, a deed from to , his 

wife, having been recorded after the death of the grantor. 

FEDERAL ESTATE TAX: 

Effective September 9, 1916, amended March 3, 1917. 

This tax is levied by the Federal Government on the 
gross estate of decedent in excess of $50,000.00 and also 
attaches to property transferred within two years of death 
without consideration, trusts and transfers made in contem- 
plation of death, interests in joint tenancies, joint bank 
accounts, half value of community property, and assets gener- 
ally. Statements must be filed by the administrator, or any 
person coming into possession, with the Collector of Inter- 
nal Revenue of the District in which decedent was a resident. 
The tax is due one year from death; if paid before, 5% is al- 
lowed; if after 90 days, 10% is added. If the exact tax can- 
not be determined, a sum sufficient in the opinion of the 
Collector to cover shall be accepted, subject to further de- 
mand or rebate. Unpaid tax remains a lien for 10 years and 
follows property into the hands of distributees and purchasers, 

A mortgage unpaid at death is superior to the tax 
which affects the equity, but the tax is superior to a mort- 
gage made under court order by the administrator. 

Close watch must be kept as to property in this State 
owned by non-resident whose main estate is elsewhere and is 
subject to the tax. 

FORMS OF EXCEPTIONS FOR REPORTS AND POLICIES 
TO BE ADA PTED TO INDIVIDUAL CASES : 

Any lien for inheritance tax that may be claimed as 
due the State of California by reason of the deed from 

to , recorded after the death of the grantor 

being subject to the inheritance tax laws. 

Any lien for inheritance tax due the State of Cali- 
fornia, by reason of the distribution of said property out 



209 



of the- estate of , deceased. (Case No. Probate.) 

Any lien for federal inheritance tax due upon the 

estate of , deceased (case No. probate), this 

property having been distributed (or sold) out of said es- 
tate and no payment of said tax being shown. 

FORMS FOR VESTING 

If property under search constitutes part of the 
estate of a decedent, vest in 

(a) "The heirs or devisees of , deceased, sub- 
ject to the administration of the estate of said decedent." 

If there is a will duly admitted to probate, vest in 

(b) "The devisees of , deceased, subject to 

the administration of the estate of said decedent." 

If deceased died intestate, vest in 

(c) "The heirs of , deceased, subject to 

the administration of the estate of said decedent." 

If title is in a minor, vest in 

(d) " , a minor." 

If title is in an incompetent, vest in 

(e) " , an incompetent person." 

If the court has made an order of sale or an order 
confirming the sale, but no deed has been issued, make the 
vesting subject to such an order, using this form attached 
to the above: 

(f) "Subject to an order confirming a sale of said 

property to , made by administrator 

(or executor) of said estate, issued out of the Superior 

Court of said County 19 , recorded in book 

, page of deeds. See probate case No. ." 

With each of the foregoing vestings an appropriate 
note should be made, following the description, to inform 
the customer more fully about the proceedings, to this effect: 

(g) "NOTE: Proceedings had in the matter of the estate 

of , deceased, show that said decedent died tes- 
tate (or intestate) on , 19 , and that 

is the duly appointed and qualified executor of the will of 
said decedent (or administrator of the estate of said dece- 
dent). Case No. probate, Superior Court." 



210 



A somewhat similar note should be made in the case of 
guardianship. If the deceased person was a mortgagee in an 
existing mortgage the note should follow the mortgage. 

WHERE ESTATE OF STRANGER CLAIMS TITLE: 



It sometimes happens that property under search is 
included in the estate of a stranger to the title. He may 
have an interest under an unrecorded contract or be in pos- 
session. Use this form: 

(h) "NOTE: The inventory in the estate of , 

deceased, shows that the property herein described is claimed 
as an asset of said estate. At the date of the filing of 

said inventory, to-wit, , said decedent had no 

record interest in this property nor has any since been ac- 
quired. No further examination has been made of this estate. 
See Case No. _ probate, Superior Court." 

FOREIGN PROBATE , PRESUMPTION OF RE GULARITY: 

When decedent died in some outside county and a copy 
of the decree of distribution only is found of record, add 
this note, adapted to suit: 

(i) "NOTE: This guarantee is written upon the presump- 
tion that the proceedings had in the Superior Court of the 

State of California in and for the County of , 

in the matter of the estate of , deceased (Case 

No. ), leading up to and including the decree of distri- 
bution had therein, are legal and regular. A certified 

copy of said decree is recorded in book , page , 

of deeds." 

RIGHTS OF MARRIED WOMEN TO COMMUNI TY PROPERTY : 

Under Sees. 1401 and 1402 C. C. in effect August 
17, 1923. 

SEC. 1401, embodies the following new features as to the dis- 
position of community property upon the death of either spouse; 

1. Upon the death of husband or wife, one-half of 
the community property belongs to the surviving spouse. 

2. The wife has power to will one-half of the com- 
munity property upon her death prior to her husband. 

3. If the wife dies first intestate, one-half of the 
community property belongs to the husband and the other half 
goes to him. 

4. If the husband dies first intestate, one-half of 
the community property belongs to the wife and the other half 
goes to her. 



211 



SEC. 1402, provides that community property passing from the 
control of the husband by his death or under the wife's will 
is subject to administration, his debts, family allowance, 
charges and expenses of administration; if the wife exercises 
her right to will, the husband, pending administration, re- 
tains the same power to deal with the community personal 
property as he had in her lifetime and the wife's executor 
only controls community property to the extent necessary to 
effectuate the will. 

After 40 days from the wife's death the husband has 
full power to deal with and dispose of the community real 
property unless a notice is recorded in the county where the 
property is situated that an interest in it is claimed by 
another under the wife's will. 

Until the Supreme Court has passed upon these laws 
and has upheld and construed their effect, title men in issu- 
ing their evidence of title can only feel safe by protect- 
ing themselves against any possible contingency that may 
arise in their application. 

The most vital question is probably that as to whether 
the Legislature has the power to give to one person the power 
to will away the property of another, for no change has been 
made in the law which vests the title to community property 
in the husband and gives the wife her half on his decease as 
an heir, that is, she has no present vested interest in the 
community real property and the husband would be deprived of 
his vested interest without due process of law. Louisiana 
and California appear to be the only States that deny to the 
wife a vested interest in the community property, but the 
Louisiana law allows either husband or wife to dispose of 
one-half of the community property by will. It also is 
argued that the Legislature in vesting title to the commu- 
nity property in the husband has the inherent power also 
to vest it subject to the power of the wife to will it. 

LAW NOT RETROACTIVE; 

It is conceded by most title men that under the cases 
of Spreckels vs. Spreckels (172 Cal. 775), Roberts vs. Wehmeyer 
(66 C. D. 177) and others that the wife's right to will applies 
only to community property purchased with community funds 
acquired subsequent to August 17, 1923. The new law is not 
retroactive and does not affect property acquired prior to 
August 17, 1923, or acquired after said date with community 
funds acquired prior thereto. 

SEC. 1401 A STATUTE OF DESCENT: 

This section as amended may safely be taken as a rule 
of succession. It is competent for the Legislature to change 
the rule of inheritance at any time. (Est. of Packer, 125 Cal. 
396, Est. of Parker, 129 Cal. 80.) The law in effect at time 
of death governs. This section applies therefore to all com- 
munity property acquired prior to Aug. 17, 1923, when death 
occurs thereafter. 



212 



SEC. 1402 THE FORTY-DAY PERIOD 



For 40 days after the death of the wife the husband 
cannot deal with the community real property. Thereafter he 
has full power to sell, lease, mortgage or dispose of it, un- 
less the notice of another's interest is recorded. There is 
no provision as to who shall record this notice. Anyone 
might do it. If such a notice is recorded no title can be 
passed until the adverse claim has been adjudicated in court. 
If no notice has been filed, the wife may nevertheless- have 
made a will and transferred title thereunder to her devisees. 
Before a deed is passed from the surviving husband depriving 
these devisees of their vested interest, affidavits should 
be secured from the husband and the purchaser or encumbrancer 
showing innocence and good consideration and the title com- 
pany be thoroughly satisfied that the wife did in fact die 
intestate. Whether the records alone can be relied on is 
problematical in view of possible vested rights. 

HUSBAND ' S PERSONAL PROPERTY RIGHTS : 

Under 1402 C. C. the husband, pending administration 
of the wife's estate, is given the same power to deal with 
community personal property as he had in her lifetime. This 
affects especially mortgages or trust deed notes calling 
for release or discharge. The wife's executor should be re- 
quired to join in a release or satisfaction where possible 
or the funds could be impounded in case of dispute and the 
lien discharged. 

NECESSI TY FOR ADMINISTRATION : 

As title is vested in the husband there must always 
be an administration of his estate when he dies. When the 
wife dies no administration is necessary of community prop- 
erty standing in the husband's name unless she has made a 
will and then as to one-half only or such portion of said 
half she has taken out of her husband's control by testa- 
mentary disposition. When she has made no will her death 
can be established of record as shown under "Estates". 

LIABILITY FOR DEBT S; 

The language of the statute is not entirely clear, but 
an expression of opinion adopted by the banks in the south 
part of the State is as follows: 

One-half of the community property over which the 
wife has testamentary disposition is subject to the community 
debts, debts contracted by the husband prior to her death, 
to her debts contracted before marriage and to debts contract- 
ed by her after marriage for necessaries in case of the hus- 
band's neglect. 



213 



SALE BY WIFE'S EXECUTOR OR DISTRIB UTEES: 

The executor's deed should not be passed as suffi- 
cient unless the husband also gives a deed for all his in- 
terest in the property. 

The same rule applies to distributees of the wife's 
estate. The husband must join in the deed or give a separate 
deed to cover any interest he may have or claim. 

SAFETY FIRST: 



All questions in doubt as a result of the effect of 
these statutes should be referred to counsel and considered 
on their individual merits. The interest of customer and 
title man must be safeguarded against any final construction 
that may be put upon these laws in the litigation. They 
are almost certain to engender. 



ESTATES ADDENDA 

LETTERS TO PETITIONER ONLY: 

Letters of administration issued to person other 
than petitioner are void. (52 Cal . 658.) 

ADMINISTRATION OF COMMUNITY PROPERTY: 



The probate court has jurisdiction to administer 
upon the community property as part of the assets of the 
husband, and the wife takes her interest in such property 
by way of succession from the husband and through distri- 
bution of his estate. (Estate of Burdick, 112 Cal. 387.) 

When a man dies possessing both separate and com- 
munity property, both pass into his estate for the purposes 
of administration. Where a wife dies, no administration 
at all is to be had upon any but her separate property. 
(Estate of Young, 123 Cal. 337.) 

Wife takes title. Husband dies. Wife treats prop- 
erty as asset of his estate. Court has jurisdiction and 
wife is estopped after distribution. (Estate of Simonton, 190 
Pac. 442.) 

(End of Subject. ) 



220 



HOMESTEADS 

NOT AN ENCUMBRANCE : 

A declaration of homestead is not an encumbrance, but 
affects the quality of the tenure and protects the property 
from execution or forced sale as provided by the statute 
which creates it and which must be followed strictly to 
maintain it. 

RECORDED DECLARATION NOT PROOF OF FACTS; 

The recitals in the Declaration are not constructive 
notice of the facts set out. (102 Cal. 493.) 

"A valid homestead and a valid declaration of home- 
stead are entirely different." The recitals in a declara- 
tion of homestead are mere ex parte statements and are not 
legitimate proof of the truth of the facts recited. (Ap- 
prate vs. Faure, 121 Cal. 466.) 

WHAT CONSISTS OF: 

The homestead consists of the dwelling house in which 
the claimant resides, and the land on which the same is 
situated. (1237 C. C.) As to use of the homestead for busi- 
ness purposes see 105 Cal. 99, 103 Cal. 264, 78 Cal. 293 and 
483. Water appurtenant to land is included in the declara- 
tion. (156 Cal. 195.) 

WHO MAY CLAIM HOMESTEAD: 

A homestead may be claimed (1260 C. C.) either by 

(a) The head of a family of value not exceeding $5000; 

(b) other than the head of a family of value not 

exceeding $1000. 

RECORDING IN TWO COUNTIES: 

The declaration may be made in duplicate and recorded 
in two counties where the land lies in both. (98 Cal. 143.) 

VALUE, HOW ESTIMATED: 



The amount of exemption is based on the value of the 
fee and not on the equity after deducting encumbrances. 
(122 Cal. 329, 62 Cal. 286, 62 Cal. 125.) 

On ceasing to be the head of a family, the homestead 
exemption is reduced to $1000.00 (86 Cal. 141, 118 Cal. 299), 
but value of exemption is not changed by death (18 Cal. 299). 



221 



STATUTORY REQUIREMENTS OF DECLARATION: 

The declaration by the head of a family (who is de- 
fined in 1261 C. C.) must contain the following statements 
(1263 C. C.) : 

(a) A statement showing that the claimant is the head 

of the family, or, when the declaration is made by the wife, 
showing that her husband has not made such declaration, and 
that she therefore makes the declaration for their joint 
benefit. 

(b) That the person making it is residing on the premises 
and claims them as a homestead. 

(c) A description of the premises (such as would be good 
in a deed) . 

(d) An estimate of their actual cash value. 

The declaration of a person not the head of a family 
must contain the statements covered by (b), (c) and (d) above. 

The omission of any of the above requirements is 
fatal, and the homestead declaration is void and of no ef- 
fect. (54 Cal. 616.) 

By the amendment passed March 21, 1905, every decla- 
ration of homestead made by one spouse must disclose the name 
of the other spouse. 

The statement in a declaration of homestead "that I 
am married" has been held not to be a compliance with the 
requirement of Sec. 1263, C. C. , to-wit: "A statement that the 
person making it is the head of a family." (126 Cal. 527.) 

Prior to July 1st, 1874, it was not necessary that 
the wife's declaration state that her husband has not made 
a declaration of a homestead. (Sec. 1263 C. C. , Amdts. of 
1873-4, pp. 231 and 269.) 

Prior to January 1st, 1873, it was not necessary to 
state the value of the homestead in the declaration. (Stat. 
1872, p. 239.) 

Prior to 1860 no declaration was required to be re- 
corded, only residence was necessary for a valid homestead. 
(Noble vs. Hook, 24 Cal. 633.) 

DATE: 



There is but one material date to the declaration, 
that of recordation. 



222 



WHAT PROPERTY SELECTED FROM : 

The homestead may be selected by either spouse from 
the community property, or from the separate property of 
the husband, but cannot be selected from the separate prop- 
erty of the wife without her consent, which must be shown by 
her making or joining in making the declaration of homestead. 

ON EQUITABLE INTEREST: 

A homestead may be declared on an equitable interest 
in land (104 Cal. 15), such as possession under an agreement 
to convey, or on a mining claim (98 Cal. 472). 

BY ONE COTENANT, INVALID: 



A homestead cannot be created by a cotenant in lands 
held under a tenancy in common. (148 Cal. 548, 153 Cal. 781, 
110 Cal. 198.) The Act of 1868 provided that parties owning 
an undivided interest, but having exclusive possession, should 
be entitled to the benefit of the law relating to homesteads. 
Both this act and the prior law are now superseded by the 
provision of the Civil Code, Sees. 1237 to 1269. Unless 
land is impressed with the characteristics of a homestead 
at the time of filing the declaration, it cannot become a 
homestead by any subsequent act of a third party or by a 
subsequent conveyance from a cotenant to her husband. 
(110 Cal. 203 and 6 Cal. 165.) 

ON PROPERTY HELD IN JOINT TENANCY : 

A homestead declared by the husband on land held in 
joint tenancy was decreed to be void in Swan vs. Walden, 
156 Cal. 195 (and see Est. of Carragher, 58 Cal. Dec. 115 of 
8-8-19 and 159 Cal. 98), but it may be declared by the wife 
on the theory that she has power to impose a homestead on 
her own property and on that of her husband. It is invalid 
if declared on land held by husband or wife or both in joint 
tenancy or in tenancy in common with a third person. 

ONLY ONE HOMESTEAD VALID: 



A person can have only one valid homestead at one 
time. (74 Cal. 266.) If two should appear of record and 
no deed out by declarant, show both, one at least is void. 
It is a question of fact. 

FORM FOR DECLARATION BY HUSBAND AND WIFE: 



KNOW ALL MEN BY THESE PRESENTS: That we, 

and 

do hereby make known and declare that we 

are husband and wife and that 

is the head of the family, to-wit: That 



223 



certain family consisting of himself, his 

wife , and one child (or 

children, as the case may be), namely 

and we do hereby further certify 

that at the time of making this declaration 
we actually reside as a family on the land 
and premises hereinafter described, to-wit: 
That certain tract of land lying and being 

in the County of 

State of California, particularly described 
as follows: 

(Here insert legal description) 

That it is our intention to use the said lot 
of land and premises above described, together 
with the dwelling house thereon and its ap- 
purtenances, as a homestead, and we do hereby 
select and claim the same as a homestead. 

We further declare that neither of us 
has heretofore made a declaration of home- 
stead, and we therefore make this declara- 
tion for our joint benefit. The actual cash 
value of said premises we estimate to be 



IN WITNESS WHEREOF we have hereunto set 
our hands this day of 19 

HOMESTEAD ON REGISTERED LAND : 

The method of declaration is governed by 1262 et seq. 
C. C, which insists on filing with the recorder, after which 
the land is a homestead (1269 C. C). This is a condition 
precedent (54 Cal. 616, 102 Cal. 493, 91 Cal. 94). The 
Torrens Act does not expressly refer to the creation of 
homesteads ; it speaks of homesteads already created in 
Sees. 5 and 56, but contains nothing repealing the code 
provision requiring recordation in former way. 

HOMESTEAD OF BANKRUPT: 



Under the State Insolvency Act of 1880, the court on 
application, no homestead having been declared and recorded, 
could set aside a homestead for the insolvent. 

The declared homestead cannot be set aside in estate 
or insolvency proceedings if its value exceeds $5,000.00. 
(86 Cal. 141, 118 Cal. 299.) 

JUDGMENT LIENS 

The homestead is subject to execution or forced sale 
in satisfaction of judgments obtained. (Sec. 1241 C. C. ) 



224 



(a) Before the declaration of homestead was 
filed for record. 

(b) On debts secured by mechanics' liens, 
laborers' or vendors' liens upon the 
premises. 

(c) On debts secured by mortgages on the 
premises executed and acknowledged by 
the husband and wife , or by an unmarried 
claimant. 

(d) On debts secured by mortgages on the 
premises executed and recorded before 
the declaration of homestead was filed 
for record. 



DEFEATS ATTACHMENT 



If an attachment is levied upon the property and a 
declaration of homestead is filed before judgment is ob- 
tained in the suit in which the attachment was issued, the 
homestead defeats the judgment and the judgment is not a 
lien on the premises described in the homestead declaration 
and provided the statements in the declaration are true. 
(54 Cal. 81.) 

DEFEATS JUDGMENT NOT DOCKETED; 

A judgment is not a lien if docketed after record- 
ing the homestead declaration, altho the action is already 
started against the claimant. (121 Cal. 582.) 

MAY DEFEAT EXECUTION FROM J. P. COURT: 



A homestead defeats an execution from a justice's 
court unless an abstract of the judgment is filed in the 
County Recorder's office. (Ill Cal. 484.) 

DEFEATS UNRECORDED MORTGAGE: 



Homestead defeats unrecorded mortgage even tho de- 
clarant had actual notice of it. The rights under a home- 
stead being statutory, actual notice is immaterial. (119 
Cal. 364.) 

JUDGMENT AGAINST EXCESS OF CODE VALUE: 



Property covered by a valid declaration of homestead 
is, REGARDLESS OF ITS VALUE, not subject to the lien of a 
judgment. 

While the excess above the statutory homestead valua- 
tion may be reached by a judgment creditor by proceedings 



225 



under section 1245 et seq. of the Civil Code, there is no 
judgment lien as to such excess, and the judgment creditors' 
right to subject such excess to the satisfaction of his 
judgment is initiated by and finds its sole basis in the 
levy of execution provided for by Sec. 1245 of the Civil 
Code. (Boggs vs. Dunn, 160 Cal. 283, 82 Cal. 226, 85 Cal. 71.) 

DEED AND DECLARATIO N RECORDED TOGETHER DEFEAT JUDGMENT: 

A deed to husband and wife was filed for record con- 
currently with a declaration of homestead. It was held to 
be one transaction and sufficient to defeat the lien of a 
prior judgment in Eby vs. Foster (61 Cal. 282). 

PROCEEDS OF SALE EXEMPT ; 

The escrow man should remember that if homesteaded 
property is sold and deeded, the proceeds up to the statutory 
value allowed are exempt from execution for six months. 
(1265 C. C.) 

SEARCHER MUST NOT IGNORE JUDGMENTS: 



Altho property searched is covered by a homestead 
declaration it is entirely unsafe to ignore judgments sub- 
sequently docketed. This is because it is impossible to 
learn from the records whether the homestead is in fact 
valid. Proceed as tho there were no homestead and show 
the judgments as encumbrances qualified with a notation 
that they cannot be maintained as valid liens if the state- 
ments in the declaration are true. 

HOW CONVEYED OR ENCUMBERED ; 

To convey or encumber the homestead of a married 
person, both husband and wife must join in the same instru- 
ment (1242 C. C). Instruments executed separately are 
void. Subsequent abandonment does not validate a former 
deed (100 Cal. 296, 81 Cal. 214). The execution and ac- 
knowledgment must be personal. It cannot be done by an 
attorney-in-fact or the acknowledgment proven by a sub- 
scribing witness. The sole exception is a deed from one 
spouse to the other, which is valid (78 Cal. 310), and vests 
the title in the grantee as his or her separate property. 
The property still remains a homestead and can only be con- 
veyed or encumbered by the joint act of both spouses. 

MORTGAGE IN ESCROW: 



If the mortgage is handled thru escrow the check 
should be made payable to both and instructions regarding 
the proceeds should be signed by both spouses. 



226 



To be valid, the loan must inure to the benefit of 
both spouses. If the proceeds were paid to the husband alone, 
it might be possible for the wife in a foreclosure suit to 
set up the defense that she got no benefit and her homestead 
rights in the property were intact, or that the loan was con- 
sumed by the husband to pay his separate debts. 

Some banks require abandonment of homestead as pre- 
requisite to a loan. In such a case the abandonment should 
be of record before the new mortgage is dated. 

RIGHTS OF WIFE UNDER MO RTGAGE : 

The mortgage must be joint and concurrent (126 Cal. 
471). The wife takes such an interest in a homestead upon 
the husband's separate property that she must be made a party 
to the foreclosure of a mortgage given prior to the homestead 
declaration. 

THE WIFE IS ENTITLED TO REDEEM AFTER FORECLOSURE (97 Cal. 48) : 

Held not to defeat lien of mortgage for purchase money 
where renewal was had and wife did not join in the new mort- 
gage. It was a new form of the old security. (109 Cal. 65.) 

If a person owns a homestead either single or as sur- 
vivor of a deceased spouse and then marries, the new husband 
or wife has no homestead interest in the property and is not 
a necessary party to a deed of mortgage thereof. (Graham vs. 
Stewart, 68 Cal. 374; Dickey vs. Gibson, 113 Cal. 26.) 

MORTGAGE FROM ONE SPOUSE TO THE OTHER: 

A mortgage given by the husband to the wife covering 
the homestead is void. (130 Cal. 392.) 

HOMESTEAD OF INSANE PERSON; 

A method of selling or mortgaging the homestead of an 
insane person was provided in 1905 under Sec. 1269 a, b and c, 
C. C. (58 Pac. 311.) 

PRESENTATION OF ENCUMBRANCES ON DEATH: 



A deed of trust is not a lien requiring presentation 
sale by the trustees upon default extinguished the homestead. 
(149 Cal. 316.) 

If one spouse dies and the property goes to the sur- 
vivor, claims against the homestead must be paid out of the 
assets of the estate. (1475 C. C. P.) In McGahy vs. Forrest 
(10 Cal. 63) the owner of a note and mortgage failed to pre- 
sent his claim to the administrator and lost his lien. This 
section has been amended to the effect that the administrator 



227 



must now notify in writing the record owner of any lien on the 
homestead property and unless so notified his rights are not 
jeopardized by failure to present his claim. This does not 
apply to a probate homestead. 

HOW ABANDONED: 



A homestead can be abandoned only by a declaration of 
abandonment, or a grant thereof, executed and acknowledged. 
(1243 C. C.) 

(a) By the husband and wife if the claimant is 
married. 

(b) By the claimant, if unmarried. 

The abandonment is effectual only from the time it is 
filed in the office in which the homestead is recorded. 

CHANGE OF RESIDENCE DOES NOT ABANDON: 

Abandonment of homestead must be made only as statute 
provides ; ceasing to use a residence or moving to new homes 
does not legally abandon homestead. (121 Cal. 582.) 

UNRECORDED ABANDONMENT NOT EFFECTIVE: 

An unrecorded abandonment held off records till one 
spouse dies is ineffective. (95 Cal. 405.) 

ADVERSE POSSESSION BY STRANGER: 

A homestead is extinguished by adverse possession. (82 
Cal. 72, 67 Cal. 387.) 

TRUST DEED DOES NOT ABANDON : 

Abandonment of homestead rights in a deed of trust 
given to secure money is not an absolute abandonment. (1 Cal. 
Dec. 555, McLeod vs. Moran. ) 

SEPARATION AGREEMENT ABANDONS : 

A homestead may be abandoned by an agreement between 
husband and wife for separation or for property settlement. 
(121 Cal. 92, 78 Cal. 310.) 

DEED AS MORTGAGE DOES NOT ABANDON : 

A deed which is in fact a mortgage does not IN FACT 
abandon the homestead (98 Cal. 143) except as to innocent par- 
ties presuming on the records. 

QUITCLAIM DEED SUFFICIENT: 

A quitclaim deed executed by both spouses is suf- 



228 



ficient to abandon homestead. (93 Cal. 664.) 

SUBDIVISION OF HOMESTEAD PROPERTY ; 

The platting and subdivision of homestead property 
does not of necessity invalidate the homestead. The records 
will not disclose facts sufficient to decide the question. It 
is well to advise an abandonment of all lots not claimed as 
part of the actual homestead and as to which it is of doubt- 
ful validity. 

HOMESTEAD IN DIVORCE PROCEEDINGS: 

If the homestead is awarded to either party it re- 
tains its homestead character till the final decree. The in- 
terlocutory decree cannot destroy the homestead. The final 
decree may destroy the homestead (165 Cal. 31). An agreement 
settling property rights where divorce was granted and no 
property adjudication made was sufficient to abandon the home- 
stead in 78 Cal. 310 and 121 Cal. 92, but a homestead declared 
by a married woman on her separate property was not affected 
where a divorce was obtained by the husband and the pleadings 
and decree were silent (111 Cal. 482). An agreement settling 
property rights between the spouses and for separation if 
aptly drawn abandons the homestead (121 Cal. 92). The court 
in a decree of divorce may set apart the separate property of 
the husband, claimed as a homestead by the wife, for a limit- 
ed period only, or may render judgment for permanent alimony 
in lieu of homestead (117 Cal. 407, 124 Cal. 583). A home- 
stead set apart in divorce suit to wife in trust for herself 
and minor children held to be a fee simple (80 Cal. 237). 

No general rule can be laid down by which the effect 
of divorce on the homestead can be measured. The advice of 
counsel should be sought in all doubtful cases. 



PROBATE H OMESTEADS 

DEFINED : 

A probate homestead is one set apart by order of court 
in a probate proceeding where no homestead had been declared 
in the lifetime of the decedent (1465 C. C. P.). The order is 
a judgment in rem (114 Cal. 690, 147 Cal. 124). Existing liens 
are not impaired (50 Cal. 544) and recording a copy of the 
order is not essential to its validity (144 Cal. 144). No in- 
terest is acquired in the property as a homestead that can 
be conveyed until the court makes the order (57 Cal. 437, 63 
Cal. 361, 100 Cal. 425), but after entry of order surviving 
spouse (104 Cal. 94) or minors by their guardian and under 
order of court (120 Cal. 421) may sell or encumber. For the 
vesting of title upon creation of a probate homestead Sees. 
1465 and 1468 C. C. P. must be construed together. The word 



: • 






229 



"family" means wife or husband or minor children, if any, and 
no act of one can prejudice the rights of the others to occupy 
the homestead premises (100 Cal. 158). The property loses 
its homestead character as each minor reaches majority and as 
to his interest only (125 Cal. 90, and cases quoted above). 
It cannot be destroyed till all the minors attain majority 
(104 Cal. 94, 126 Cal. 576, 120 Cal. 428). 

A probate homestead set aside to the widow absolutely 
out of the SEPARATE property of the husband was held good and 
the order not void, after time for appeal had expired (127 
Cal. 275). 

A GOOD FORM FOR VESTING A PROBATE HOMESTEAD FOLLOWS ; 

"Jane Doe, a widow, an undivided half and 
in Richard Doe and Mary Doe, minors, each an un- 
divided quarter, as a Probate Homestead set 

apart to them by order made 

out of the Estate of John Doe, deceased (Pro- 
bate Case No. Superior Court), a certified 

copy of said order being recorded in Book 

page of Homesteads (or Official Records) 

in the County. " 

WIDOW'S RIGHTS UNDER 1469 (^ CL P. : 

The fact that property is a homestead does not pre- 
vent the court setting it aside to the widow under 1469 C. C. P. 
(See Est. of Neff, 25 C. D. 519), but this is not a probate 
homestead. 

NEGLECT TO ADMINISTER: 



Neglect to administer estate of decedent does not im- 
pair the rights of the surviving spouse in the homestead. It 
is not any part of the estate (88 Pac. 608). An order setting 
apart a probate homestead does not affect the original decla- 
ration; it only takes the property out of administration 
(144 Cal. 650, 123 Cal. 337). 

PROBATE HOMESTEAD EXEMPT FROM LIEN S: 

A probate homestead is exempt from liens the same as 
a selected homestead (100 Cal. 322). 

PROBATE HOMESTEADS EXPLAINED : 

For a good dissertation on probate homesteads in 
general see 121 Cal. 647. 

RIGHTS OF WIDOW IN PROBATE HOMESTEAD : 

The widow, when owner of an undivided half in a pro- 



230 



bate homestead, may mortgage or convey her interest subject to 
the homestead quality of the premises (104 Cal. 94, see 133 
Cal. 99). As the minor children reach majority, their in- 
terest in the homestead (as a homestead) ceases, for they are 
no longer part of the family and their individual interest 
vests in them as remaindermen or reversioners. The widow, if 
living, is the only claimant left and her homestead right 
remains while she can assert it (125 Cal. 90). 

In Otto vs. Long (28 Cal. 119) a homestead set aside 
in probate was declared to be not void altho the decedent had 
another homestead. The fee in remainder after the termination 
of a probate homestead can be sold to pay debts (139 Cal. 149). 
A probate homestead cannot be set off to the widow by the 
court after her remarriage ; she is no longer within the code 
provisions (43 Cal. 641, 117 Cal. 509, 123 Cal. 466), and the 
right is lost to a minor child if he waits till his majority 
(Est. of Harwood, 31 Cal. Dec. 381). 

ORDER EFFECTIVE WHEN: 



The order setting aside the homestead is effective 
from its date, not from its entry (144 Cal. 144). 

In general, a homestead set apart for the widow and 
family in a probate proceeding prevails over a former deed 
made by the widow (100 Cal. 158 and 425, 120 Cal. 428, 104 
Cal. 94). It is exempt from the prior debts of either spouse 
(100 Cal. 322) and is unlimited as to value (99 Cal. 449, 141 
Cal. 646, 81 Cal. 579, 128 Cal. 380). It can be only set 
apart out of land which could have been dedicated by a de- 
clared homestead (80 Cal. 208) and not out of unoccupied land 
(134 Cal. 96). 

VESTING ON DEATH OF SPOUSE: 



If the homestead was selected by either husband or 
wife from the community property or from the separate property 
of the husband or wife selecting or joining in the selection 
of the same, it vests absolutely in the survivor. (Sec. 1474, 
C. C. P.) 

PROOF OF DEATH : 

There are several ways in which the death of the 
spouse not owning of record the land impressed with the 
homestead may be proved. 

(a) Probate proceedings in regard to other 
property. 

(b) The special proceeding for that purpose 
under Sec. 1723, C. C. P. 



231 



(c) The provisions of the Vital Statistics 
Act (Stat. 1917, Chap. 548) under which 
the certificate of the Registrar of Births 
and Deaths or his deputies and appointees 
is made legal evidence of the facts stated. 
A certified copy of the death certificate 
can be obtained for the fee of 50 cents 
and should be recorded with an affidavit 
establishing identity. 



PROBATE COURT CANNOT TRY TITLE; 



Proof of death is not sufficient where the spouse 
owning the record title dies. Title passes to the survivor 
only if the homestead is in fact valid and neither the rec- 
ords nor the probate court directly can prove this fact. 
The court is given the power to cut the homestead out of 
administration proceedings in certain cases. (1465 C. C. P, 
et seq.) 



(End of Subject) 



235 



HUSBAND AND WIFE 



GENERAL PROVISIONS OF THE LAW 



Before admission to Statehood the civil law of Spain 
and of Mexico governed the property rights, title and tenure 
of married persons and the main features of this law were 
early adopted by the State in its enactment of the Community 
Property Law which, with its various amendments, now governs 
the property relationship of the spouses. 

Similar laws, modified by individual State statutes, 
exist in the States of Louisiana, New Mexico, Arizona, Texas, 
Washington, Nevada and Idaho. 

Estates by the entireties , of dower and by the cour- 
tesy are entirely foreign to California law. 

MUTUAL RIGHTS AND OBLIGATIONS: 



The husband is the head of the family. He may choose 
the domicile and the wife must live there. 

Neither husband nor wife has any interest in the 
property of the other, but neither can be excluded from the 
other's dwelling. Either spouse may enter into any trans- 
action with the other, or with any other person, as if 
unmarried. 

The Supreme Court ruled in Fay vs. Fay (165 Cal. 469) 
that husband and wife are at liberty under our law "to change 
by contract the character of their property from community 
to separate if they see fit to do so." Marriage settlements 
and ante-nuptial agreements are lawful. By mutual agreement 
either spouse may relinquish his or her interest, both pres- 
ent and future, in the property of the other. (148 Cal. 
233, 73 Cal. 583. ) 

They cannot by any contract alter their legal rela- 
tion to each other except as to property, but they may make 
a valid agreement in writing to separate and live apart. 
(159 C. C.) 

The wife must support the husband out of her separate 
property if he has none, or out of the community, if unable 
to support himself. 

DEBTS AS A LIEN: 

The community is liable for the debts of the husband 
whether contracted before or during the marriage. The earn- 
ings of the wife are not liable for the debts of the husband. 
The contracts of the wife after marriage cannot be enforced 



. 



236 



against the community property unless the husband has con- 
sented to the same. If she makes a mortgage covering the 
community property not standing of record in her name it 
could not be foreclosed unless the husband had joined in the 
instrument. The separate property of either spouse is not 
liable for the debts of the other, but if the husband fails 
to support the wife, a person supplying her with necessaries 
could recover the cost of same from the husband and make good 
against his property. 

MAY HOLD PROPERTY, HOW; 

Husband and wife may hold property as joint tenants, 
as tenants in common or as community property. (161 C. C.) 

SEPARATE PROPERTY OF WIFE: 

All property of the wife, owned by her before mar- 
riage, and that acquired afterwards by gift, bequest, devise 
or descent, with the rents, issues and profits thereof, is 
her separate property. The wife may, without the consent of 
her husband, convey her separate property. (162 C. C.) 

The earnings and accumulations of the wife (and of 
her minor children living with her), while living apart from 
her husband, are her separate property. 

SEPARATE PROPERTY OF HUSBAND: 



All property owned by the husband before marriage, 
and that acquired afterwards by gift, bequest, devise, or 
descent, with the rents, issues and profits thereof, is his 
separate property. (163 C. C.) 

COMMUNITY PROPERTY : 

All other property acquired after marriage by either 
husband or wife, or both, is community property; but whenever 
any property is conveyed to a married woman by an instrument 
in writing, the presumption is that the title is thereby 
vested in her as her separate property. And in case the con- 
veyance be to such married woman and to her husband, or to 
her and any other person, the presumption is that the married 
woman takes the part conveyed to her, as tenant in common, 
unless a different intention is expressed in the instrument, 
and the presumption in this section mentioned is conclusive 
in favor of a purchaser or encumbrancer in good faith and 
for a valuable consideration. And in cases where married 
women have conveyed, or shall hereafter convey, real prop- 
erty which they acquired prior to May 19, 1889, the husbands, 
or their heirs or assigns, of such married women shall be 
barred from commencing or maintaining any action to show that 
said real property was community property, or to recover said 
real property, as follows: "As to conveyances heretofore made, 
from and after one year from the date of the taking effect of 



237 



this act; and as to conveyances hereafter made, from and after 
one year from the filing for record in the Recorder's office 
of such conveyances, respectively." (164 C. C.) 

CONTROL OF COMMUNITY PROPERTY : 

"The husband has the management and control of the com- 
munity property, with the like absolute power of disposition, 
other than testamentary, as he has of his separate estate." 

This was the law from 1850 until June 1, 1891, at which 
date an amendment (Stat. 1891, p. 425) was made by adding the 
words: "Provided, however, that he cannot make a gift of such 
community property, or convey the same without a valuable con- 
sideration, unless the wife in writing consents thereto." 
(172 C. C.) 

A new section (172-a C. C.) came into force July 27, 
1917, as follows: 

"The husband has the management and control of the com- 
munity real property, but the wife must join with him in execut- 
ing any instrument by which such community real property, or 
any interest therein, is leased for a longer period than one 
year, or is sold, conveyed or encumbered; provided, however, 
that the sole lease, contract, mortgage or deed of the husband 
holding the record title to community real property, to a les- 
see, purchaser or encumbrancer, in good faith without knowledge 
of the marriage relation shall be presumed to be valid ; but no 
action to avoid such instrument shall be commenced after the 
expiration of one year from the filing for record of such in- 
strument in the recorder's office in the county in which the 
land is situate. " 

VESTING OF TITLE: 

Under the sections set out above defining the separate 
and community property of the spouses it appears that : 

(a) All property conveyed to a married woman 
(other than by gift deed or deed from her 
husband) prior to May 18, 1889, is "pre- 
sumptively community property" and 

(b) Since that date is "presumptively her 
separate property". 

Where the presumption of community property applies, 
search must be made against the husband also. 

If the owner is a woman and acquired the title by deed 
(other than a gift deed) prior to May 19, 1889, and it does not 
appear from the deed or other matters in the search that she 
was a single woman at the date of the deed to her, vest the 



238 



title in her, and make the following note after the description: 

NOTE : Said acquired said property 

by a bargain and sale (or grant) deed from , dated 

in Book Page of Deeds, which does not state 

whether said grantee was married or single. If she was then 
married said property is presumptively community property. No 
examination has been made against her husband, his name not 
being disclosed by the records. 

In this kind of a case, watch for a probate proceeding. 
The husband may be dead and his estate distributed by omnibus 
clause not specifically mentioning the premises under search. 

Where the presumption of separate property applies vest 
title in the name of the woman (giving her husband's name when 
disclosed) "presumptively as her separate property" and add the 
words "if married" should the marital status of the woman not 
appear of record. In these cases, a conveyance from her alone 
is sufficient without her husband joining unless the property 
is homesteaded and judgments against the husband may be ignored. 

NECESSITY FOR JOINDER OF SPOUSE: 

The husband must join in all deeds made by married 
women purporting to convey property acquired by the wife prior 
to May 19, 1889, unless acquired by a gift deed or deed from 
her husband. If a deed of community property standing of rec- 
ord in name of married woman is made by a married woman, with- 
out her husband joining therein, the husband, or his heirs or 
assigns will be barred from bringing suit to recover the prop- 
erty, or to show that it was community property one year from 
the date of filing for record a deed from her, and no suit 
having been brought prior to that time, this deed may be treated 
as conclusive. (164 C. C.) 

On and after June 1st, 18 91, the wife must join in (or 
otherwise, consent of record to) all deeds conveying community 
property, except that acquired by the husband prior to June 1, 
1891. Prior to June 1st, 1891, the husband's signature alone 
was sufficient to pass title to all property (not a homestead) 
standing of record in his name. And his deed alone is still 
sufficient to convey property acquired by him prior to June 1, 
1891, which is not homestead property. See Sec. 172 C. C. , 
wherein amendment of 1891 forbids the husband to give away com- 
munity property without the written consent of his wife, and 
see also Spreckels vs. Spreckels (116 Cal. 339), which holds 
that said amendment cannot be construed retrospectively so as 
to deprive the husband of his vested right to dispose by gift 
of community property acquired prior to the amendment and with- 
out the consent of the wife. A valuable consideration for the 
sole deed of the husband is presumed under 1614 C. C. 



239 



SOLE DEED BY HUSBAND OF COMMUNITY PROPERTY : 

Property acquired by a married woman prior to May 18, 
1889, was presumed to be community property. In Jordan vs. 
Fay (98 Cal. 264) this was declared to be a rule of property 
and not a rule of evidence. Deed by husband alone after 
wife's death was held good. But see Ramsdell vs. Fuller 
(28 Cal. 38) , deciding that purchaser from husband, where 
property stood in name of wife, must ascertain true status 
of tenure and wife won back her interest by proof it was in 
fact her separate property. 

Before passing such a deed careful enquiry must be 
made and the facts ascertained as to the true status of the 
property. 

SECTION 172a, C^ C^ 

This section (in effect July 27, 1917, see ante) 
changed considerably the husband's right of disposition of 
property acquired thereafter, either community or presump- 
tively community and taken of record in his name. 

This section was decided to apply in no way to property 
acquired prior to its enactment, in the case of Schubert vs. 
Lowe (41 C. A. D. 125 on May 4, 1923). The wife's joinder is 
governed by the date of acquisition. The court cited, in sup- 
port of its decision, the Spreckels case (116 Cal. 339) and 
Frees Estate (201 Pac. 111). 

The case of Roberts vs. Wehmeyer (36 C. A. D. 815) ruled 
that a deed by the husband alone is voidable and that this 
section has the same restraint upon transfers of community 
real property that Section 1242 C. C. has upon conveyances of 
homesteads, and further the purpose of the section is to place 
it beyond the power of either spouse, acting alone, to destroy 
the community character of such property by deed or incum- 
brance, the analogy between such a deed and that of homestead 
property being complete. The court held that the section 
did not affect the title to real property, but was a limitation 
upon the husband's power to dispose of the same. 

Prior to the adoption of this section the husband had 
the right to give away an undivided half interest in the com- 
munity without the consent of the wife. (Dargie vs. Patterson, 
176 Cal. 714.) It was held that, prior to July 27th, 1917, such 
a gift is voidable solely at the wife's election as to an un- 
divided half after death of husband without regard to considera- 
tion of his estate. (Dargie vs. Patterson, 65 Cal. Dec. 735, of 
Dec. 4, 1917.) The statute starts to run against the wife only 
on the death of the husband. (Spreckels case, 172 Cal. 775.) 



240 



COMPLIANCE WITH SEC. 172a, C. C. ; 

Deeds and mortgages, etc. , affecting property standing 
of record in the name of the husband must be executed by both 
spouses. The wife must be a party to the instrument or con- 
tract, her signature alone is not sufficient to show her 
joinder. 

Under the Roberts vs. Wehmeyer case personal execution 
is necessary. It is not safe to accept execution under a 
power of attorney in the absence of a decision of authority 
permitting it. In Goodrich vs. Tumey, 30 C. A. 683, the court 
said (obiter dicta) that contract of sale or exchange signed 
by husband only was not void but voidable at instance of 
the wife. 

ASSIGNMENT BY HUSBAND ALONE ; 

Assignment of a certificate of sale acquired by a 
married man is not valid against the wife unless she signs 
also, his interest being identical with interest of a vendee 
under contract of sale. (31 Cal. 294.) Sheriff's deed later 
reciting the assignment does not cure the defect as he has 
no power to execute deed to an assignee except upon a valid 
assignment. (113 Cal. 552.) 

DEDICATION BY HUSBAND ALONE : 

To dedicate a street or create an easement against 
community property, the wife must join husband in the deed. 
(Cordano vs. Wright, 159 Cal. 610 to 620.) 

"SEPARATE OR COMMUNITY," DEEDS CONSTRUED: 

While Shaw vs. Bernal (163 Cal. 262) and Yoakum vs. 
Kingery (126 Cal. 32) decided that each took half as separate 
property, in Miller vs. Brode (62 Cal. Dec. 57) on June 30, 1921, 
the Supreme Court in bank decided that the husband's half is 
community property and the wife's half her separate estate 
and that the presumption under 164 C. C. governs. 

There is no presumption as between husband and wife 
under 164 C. C. There is simply a prima facie presumption (ex- 
cept where a purchaser or encumbrancer in good faith and for 
a valuable consideration is concerned). (Shaw vs. Bernal, 
163 Cal. 270.) 

It was held in Hammond vs. McCullough (59 Cal. 639) 
that a deed from wife to husband is good upon delivery with 
intent to divest herself of title and immediately vest the 
husband with title. Such deeds will be given their legal 
force and effect. 



241 



COMMUNITY PROPERT Y IN WIFE'S NAME: 

Husband dies, wife is administratrix and includes her 
own property in final account as being community property of 
estate. Court has jurisdiction over the property, wife is 
estopped from claiming it and decree is final. (Estate of 
Simonton, 190 Pac. 442.) 

DEED TO WIFE "AS HER SEPARATE PROPERTY" : 

Property was purchased with community funds and the 
deed ran to the wife "as her separate property". As this was 
done with husband's consent he is bound thereby and cannot 
obtain judgment decreeing it community property. (Miller vs. 
Brode, 62 Cal. Dec. 57, June 30, 1921.) As this decree was 
based upon evidence adduced it does not interfere with the 
rule of vesting under the presumption in 164 C. C. 

CONTRACT INTEREST AS COMMUNITY PROPERTY: 



The presumption of separate property arising from a 
deed to a married woman under 164 C. C. has no application to 
a contract of sale in favor of a married woman and assignment 
by her is void if payments were made from community funds. 
(See Peiser vs. Bradbury, 138 Cal. 570.) 

PROPERTY IN BOTH NAMES, CONSIDERATION SEPARATE : 

Real property purchased with the separate funds of 
husband and wife is presumed to be the separate property of 
each. (Yoakum vs. Kingery, 126 Cal. 30.) 

DEEDS TO DEFEAT PROBATE: 



Husband and wife sometimes make each a deed to the 
other, both of the same date and covering the same property. 
This is done so that the survivor may record one deed and 
destroy the other and so avoid administration proceedings 
in the probate court. Usually there has been no delivery of 
these deeds and no title actually passes, tho delivery is 
presumed by recordation as to innocent third parties. If put 
to the test, the facts as to delivery govern and not the in- 
tention of the parties. 

Deeds between husband and wife to avoid administration 
on death of either are a fraud upon the law. (Hammond vs. 
Weir, 41 C. D. 439. ) 

The husband takes the community property - not as an 
heir (74 Cal. 526). The wife takes her community share as an 
heir (153 Cal. 359). 



242 



DIVORCE 

CAUSES : 

Adultery, extreme cruelty, wilful desertion, wilful 
neglect, habitual intemperance for one year, conviction of 
felony (92 C. C). There are 6 causes for annulment of mar- 
riage set out in Sec. 82, C. C. 

SEPARATE MAINTENANCE : 

The wife may sue for maintenance without divorce in 
certain cases and the court may grant relief in its discre- 
tion (137 C. C). Its decree may be enforced and the husband's 
property bound thereby. (115 Cal. 266, 117 Cal. 633.) 

COURT ACTION: 



No divorce can be entered merely upon default of the 
defendant, the court must require proof of the allegations. 
(130 C. C.) 

After entry of the interlocutory decree, neither party 
can dismiss the action without consent of the other. (131 
C. C, 1915.) 

The final decree can be made only after one year has 
elapsed from the interlocutory decree, but not if any appeal 
or motion for a new trial on the first decree is pending. 

DEATH OF PARTY: 

The death of either party after the entry of the inter- 
locutory decree does not impair the power of the court to enter 
final judgment. (132 C. C. ; Est. of Seiler, 164 Cal. 181; Est. 
of Dargie, 162 Cal. 51.) 

PROPERTY IN DIVORCE: 

If the decree be rendered on the ground of adultery or 
extreme cruelty, the community property shall be assigned to 
the respective parties in such proportions as the court may 
deem just. (146 C. C. ) 

If on any grounds other than adultery or extreme 
cruelty the community property shall be equally divided be- 
tween the parties. (146 C. C.) 

The most useful case for title men to follow in deal- 
ing with property rights on divorce is that of Brown vs. Brown, 
decided April 7, 1915 - 147 Pac. 1168. (See 170 Cal. 1 and 8.) 
The Court held as follows: 



243 



1. When a final decree of divorce makes no disposition 
of the community property, the parties become tenants in com- 
mon of such property. 

2. "If the cause of divorce is neither extreme cruel- 
ty nor adultery, each will thereafter be the owner of an undi- 
vided one-half of the community property, WITHOUT FURTHER 
ORDER OF THE COURT, but, if given for either of said causes, 
the respective interests of the parties in the community prop- 
erty left undisposed of is subject to the determination of a 
court of competent jurisdiction in a subsequent action or pro- 
ceeding. " 

3. If the complaint alleges that there is no commu- 
nity property, a decree of divorce reciting that all the alle- 
gations of the complaint are true, or words to that effect, 
constitutes an adjudication that at the time the action was 
begun there was no community property, and this is the effect 
of such a decree, notwithstanding the fact that the final 
decree is silent as to the property. 

4. That property acquired by the husband after the 
action is instituted and at any time prior to the entry of the 
final decree for divorce is community property and, unless 
some adjudication pertaining to the same under a supplemental 
complaint has been made of said property, such property be- 
comes on the entry of the final decree of divorce, the prop- 
erty of both plaintiff and defendant in the action, as tenants 
in common of such property, under the rule above set forth in 
Paragraph 2 hereof. 

If real property is acquired by a married man, it is 
presumed to be community property and on divorce in another 
State, as foreign courts have no jurisdiction over California 
real property, the community property is divided, each spouse 
taking a half interest. If the wife acquired, the opposite 
would be true and she would take it all under the presumption 
in Sec. 164, C. C. 

A property settlement fraudulently procured may be 
set aside in subsequent divorce proceedings. (McCahan vs. 
McCahan, 47 Cal. App. 176.) 

HOMESTEAD ON DIVORCE; 

If a homestead has been selected from the community 
property, it may be assigned to the innocent party, either 
absolutely or for a limited period or sold as the Court may 
direct. (146 C. C. ) 

If a homestead has been selected from the separate 
property of either, it must be assigned to the former owner, 
altho the court may assign it for a limited period to the inno- 
cent party. (146 C. C. ) 



244 



Decree awarding homestead community property to the 
wife terminates homestead rights of husband. (80 Cal. 237, 
73 Cal. 425.) 

Sec. 137, C. C. , as amended, read with Sec. 147, com- 
pels the Court to determine homestead rights in a suit for sep- 
arate maintenance without divorce. (165 Cal. 31.) If not so 
determined, decree may be amended. (23 Cal. App. 160.) 

Homestead by married woman on her separate property 
is not affected by divorce decree in her favor where pleadings 
and decree are silent as to property. Property after divorce 
was held proof against execution. (HI Cal. 482.) 

Property settlement and division between husband and 
wife, including transfer of interests inter se, abandons home- 
stead. (121 Cal. 92.) 

In awarding community property to wife, Court has power 
to vacate and discharge the prior recorded homestead. (165 
Cal. 31.) 

Homestead by husband on his separate property-deed to 
wife - divorce without adjudication of property rights. Hus- 
band is in same relation to property as if he had died. (78 
Cal. 310.) 

Court cannot dispose of community property or home- 
stead until marriage is actually dissolved. (Remlay vs. Rem- 
lay, 33 C. A. D. 304.) 

RECONCILIATION ; 

No final decree must be entered if parties effect a 
reconciliation even if one year since first decree has passed. 
(175 Cal. 250.) 

Court may refuse to enter final decree after reconcilia- 
tion. (165 Pac. 706. ) 

STRANGER TO TITLE: 

Allegations in divorce between parties entirely 
foreign to the chain of title are not constructive notice. 
(153 Cal. 718.) 

DECREE WHEN FINAL : 

Interlocutory decree is final against appeal after 
sixty days. If entered upon personal service it is final 
against being unsettled on petition under Sec. 473, C. C. P., 
after six months; if entered on service by publication, then 
it is final in one year. (55 Cal. Dec. 827 of June 3, 1918, 
in Bancroft vs. Bancroft.) But final decree must be entered 
after one year to support the first decree. 



245 



Prior to the amendment of 1903 there was no provision 
for an interlocutory decree of divorce. (132 C. C.) 

PROPERTY ON ANNULMENT: 



Court has equitable jurisdiction of property if parties 
submit it as an issue. (94 Cal. 446 and 160 Cal. 671.) 

RESUMPTION OF MAIDEN NAME : 

Change of name is an incident to divorce just as is 
the right to remarry and is a similar incident to the decree, 
besides making a record upon which third parties may rely in 
dealing with the divorced woman. 

Under common law any person has legal right to change 
his name and Sec. 1275 et seq. , C. C. P., merely provides an 
additional method and makes the change a matter of record. 
(90 N. E. 947, 26 L. R. A. n. s. 1167.) 

As there is no property in a name, and as persons may 
assume any name they please, it is probably a matter of choice 
which name a woman adopts on divorce. (9 R. C. L. 488, Note 
65, Am. Dec. 355.) 

A woman who acquired title prior to divorce under her 
married name, and who deeds out by the maiden name she has 
resumed, must use both names in the conveyance. 

ALIMONY, NOT SUBJECT TO CONTRACT: 

Alimony awarded to wife and made lien on property of 
husband by court cannot be abrogated by agreement between 
husband and wife. No case in California, but decided in Sil- 
berschmidt case (112 Ills. App. 58). In Wilson (45 Cal. 399) 
decided that statute conferred authority and parties could not 
abridge it. (See, also, 114 Cal. 542.) Court can affirm or 
disregard property settlements. (Loveren, 106 Cal. 509, and 
Sloan, 179 Cal. 393. ) 

WIFE SUED ALONE : 

Married woman may sue and be sued without joining 
husband. (370 C. C. P., amended 7-29-21.) 

(End of Subject) 



250 



JOINT TENANCY 



JOINT INTEREST DEFINED : 

A joint interest is one owned by several persons in 
equal shares, by a title created by a single v/ill or trans- 
fer, when expressly declared in the will or transfer to be 
a joint tenancy, or when granted or devised to executors or 
trustees as joint tenants. (683 C. C.) 

THE FOUR UNITIES: 



There are four requisites which must exist in the 
creation of a joint tenancy, that is, the tenants must have 
one and the same interest; the interest must accrue by one 
and the same conveyance ; they must commence at one and the 
same time and the property must be held by one and the same 
undivided possession. If any one of these elements is lack- 
ing, the estate is not one in joint tenancy. 

QUANTUM OF ESTATE: 

The theory of a joint tenancy is that the fee title 
as a whole is vested in each of the tenants subject to the 
life interest of the other tenant or tenants and if one of 
the parties dies he merely drops out of the title, his inter- 
est ceases and the title remains vested in the survivors under 
the original deed creating the joint tenancy. No title is de- 
rived by the survivor from his deceased co-tenant, he takes 
solely from the original grant. (12 Cal. App. 355.) 

DURATION: 



The duration of a joint tenancy does not affect its 
validity; hence it may be created in fee, for life, for years, 
or even in remainder. (7 R. C. L. 811.) 

WHAT PROPERTY MAY BE INCLUDED: 



A joint tenancy may be created in either real or per- 
sonal property. "Whatever may be subject to individual domin- 
ion by virtue of the law of sole ownership is likewise suscep- 
tible of being made subject to such joint dominion as results 
from the law of joint ownership." (Freeman on Co-tenancy.) 

A joint tenancy in personal property created by oral 
agreement was upheld in Harris estate. (147 Cal. 967.) 

CORPORATIONS BARRED: 



A corporation cannot be a party to a joint tenancy as it 
would be repugnant to the theory of survivorship. (2 Cal. 297.) 



251 



NOT AN ESTATE OF INHERITANCE: 

It is not correct to say that on the decease of one 
of the tenants the survivors inherit the share of the dece- 
dent, because in a joint tenancy there is no inheritance. 

If a joint tenant should make a devise of the property 
and die, the claim of the surviving tenant arises at the same 
instant with that of the devisee and defeats the devise. (7 
R. C. L. 812.) 

FORM OF DEED: 



The grant creating the tenancy must not name the pro- 
portionate shares conveyed to each tenant, such as "an undivided 
half each". Such a grant would create a tenancy in common. 

No set words or phrases are called for in the codes 
by which a joint tenancy may be created; it is necessary, how- 
ever, that the intention of the parties be clearly expressed. 
Title companies consider that the words "as joint tenants" 
following the names of the grantees in the granting clause of 
the deed, unsupported by any other explanatory language, are 
sufficient to express the intention of the parties in creat- 
ing the joint tenancy. The habendum clause (if any) should 
run "to have and to hold to the said grantees as joint ten- 
ants". The right of survivorship being a necessary incident 
to a joint tenancy, without which such a tenancy cannot exist, 
it seems superfluous to add such words as "with the right of 
survivorship". (169 Cal. 287 and 30 C. A. D. 385.) 

Our Supreme Court, in the case of Swan vs. Walden 
(156 Cal. 195), quotes with approval the wording of a joint 
tenancy deed which was approved by the Supreme Court of 
Indiana. The Indiana court said: "We know of no more apt 
term to create a joint tenancy than the expression 'convey 
and warrant to Daniel S. Wiggins and Laura Bell Wiggins in 
joint tenancy* . " 

Deed to husband and wife "as joint tenants with right 
of survivorship". Habendum "to said grantees and to the sur- 
vivor of them forever". Creates good joint tenancy and not a 
life estate as joint tenants with remainder over to survivor. 
(Hilborn vs. Soule et al. , November 4, 1919, 185 Pac. 982.) 

It is doubtful if a joint tenancy can be created by a 
quitclaim deed. Affirmative words of establishment or crea- 
tion should be used. 

By agreement between husband and wife, husband and wife 
cannot create a joint tenancy in land which they hold as com- 
munity property, or which is the separate property of either 
by executing a deed to themselves as joint tenants. (See 683 
C. C. ; 127 Cal. 143 at 149; 2 Cal. 289, 297.) 



252 



EFFECT OF DEED BY ONE TENANT ; 

If two persons hold as joint tenants and one deeds 
"an undivided half" or "all his interest", the joint tenancy 
is destroyed and the remaining tenant becomes a tenant in com- 
mon with the new grantee, holding each an undivided half. 

If three persons hold as joint tenants and one deeds 
his interest to a third party, the two remaining owners con- 
tinue as joint tenants as to an undivided two-thirds as ten- 
ants in common with the stranger as to his undivided one-third. 

If one tenant deeds in escrow, consider this example: 

"A" and "B" own as joint tenants. "A" deeds to "C" an 
undivided half interest and delivers deed to "X" to hold until 
"A" dies, then deliver it to "C". Held that "B" took full 
title on death of "A". There was no assent or acceptance by 
"C" prior to death, at which moment "B" became fully vested. 
(Green vs. Skinner, 197 Pac. 60.) 

From the nature of a joint tenancy it is apparent 
that any act of the parties, or of any of them, which affects 
a severance destroys the estate as such tenancy to that ex- 
tent. This form of estate may be voluntarily severed, there- 
fore, by a conveyance of any interest, or by partition, or, 
involuntarily, by a levy and sale under execution where the 
interests of any of them are subject to such levy, and as to 
such interest (7 R. C. L. 815) Tiederoan says "the joint ten- 
ancy is diminished to that extent". 

PROOF OF DEATH : 

When one joint tenant dies it becomes necessary to 
establish proof of death upon the public records. For the 
various ways of doing this see under "Estates". 

ONE JOINT TENANT MAY MORTGAGE ALON E: 

See Wilkins vs. Young in 55 Am. State Rep. 162 (144 
Ind. 1), where it is held: Any interest a person may sell he 
may also mortgage. A joint tenant may mortgage his interest 
and right of survivor is suspended to that extent and right 
of redemption at death of tenant will fall to survivor as to 
such mortgaged interest. In Indiana, joint tenancy is allowed 
by statute between husband and wife, and if not created by 
words of limitation in the deed they take by the entireties. 
In this case grant was in good joint tenancy form, but haben- 
dum ran to "their heirs and assigns forever". The court 
found these words superfluous and in no way affect the intent 
of the grantor. 

The same holds true of a trust deed. In either of 
such cases the mortgage or trust deed should be shown as an 



253 



exception or encumbrance, adding to the form of setting it up, 
"affecting an undivided half interest in said property and 
affecting only the interest of the mortgagor (or trustor) 
therein" . 

The effect of such an instrument is to suspend the 
joint tenancy so far as the mortgagee or trustee and bene- 
ficiary are concerned. Upon release or reconveyance the 
impairment ceases and the joint tenancy remains as before. 
Upon foreclosure and sale the purchaser would become a tenant 
in common with the other original joint tenant. The joint 
tenant not mortgaging, having an interest in the property, is 
entitled to redeem. (See Redemption under "Mortgages".) 

CONVEYANCE OF PORTION OF PROPERTY: 



Deed by one tenant of a specific part of the property 
held in joint tenancy is not void. (35 Cal. 576.) The grantee 
acquires all interest of his grantor in the tract deeded and 
holds as tenant in common with those who did not join in the 
conveyance. The rights of the remaining tenants are not prej- 
udiced and the property not included in the deed remains as 
it was. A like result would occur upon partition. 

CREATION BY SINGLE INSTRUMENT: 



Under Section 683, C. C. , above quoted, a joint interest 
must be "created by a single will or transfer". Where any 
doubt exists, as in a sale by an administrator or an agree- 
ment to convey to a married man alone followed by a deed to 
the man and his wife as joint tenants, the matter should be 
referred to the law department. Such a deed should recite 
that it is given and accepted in fulfillment of the sale or 
contract or an assignment recorded ante-dating the conveyance. 
There comes a time in such a transaction when the considera- 
tion is all paid and a deed is demandable. A husband may 
make a gift to his wife of half his equity and the minds of 
all parties meet to create a joint tenancy. The situation in 
an administrator's sale may be met by a deed to a third party 
from the husband and a subsequent deed to husband and wife as 
joint tenants. 

JOINT TENANCY BETWEEN MARRIED MEN: 



Held to be of doubtful validity by reason of wife's 
community expectancy. Vest under the deed, but protect your 
vesting with some such notation as this: 

"The persons shown as vestees acquired title to said 
land by a deed sufficient in form to create a valid joint 
tenancy. The record does not disclose whether the purchase 
price was paid from the separate or community funds of the 
respective grantees. No guarantee is therefore made that the 
joint tenancy provisions of said deed would prevail over the 
statute governing the disposition of community property in the 
event of the death of either spouse." 



254 



The wife's community rights are so far recognised by 
the State of Washington that the wife's joint execution with 
the husband in his deed out has been held necessary to pass 
good title, and under two Washington decisions it is possible 
that property acquired by a married man with another person in 
joint tenancy may be held to be community property in Cali- 
fornia. (100 Pac. 858 and 75 Pac. 812.) 

In any such case the wife's possible community rights 
cannot be ignored and must be carefully guarded against. No 
deed from a married man holding in joint tenancy should be ac- 
cepted without the joinder of the wife if the property was 
acquired subsequent to July 27, 1917 (172a C. C. ) or without 
her consent or the showing of a valuable consideration if ac- 
quired prior to said date. 

JOINT TENANCY DEED TO MARRIED MAN AND ANOTHER PERSON: 



The recorded deed contained a clause to the following 
effect signed and acknowledged by the wife of the married man: 

"Mary Smith, wife of said John Smith, signs this deed 
for the purpose of establishing the fact that no community 
funds were used in the purchase of said property by her said 
husband and of disclaiming any right to or interest in said 
property that might be imputed by reason of the marital rela- 
tionship of said parties." 

The estoppel of the wife removed any doubt as to her 
claim of community rights if her husband should die before 
the other joint tenant. 

JOINT PAYEES: 



Where a mortgage or deed of trust runs to A and B, hus- 
band and wife, both should join in a release or request for 
reconveyance. Sec. 1431, C. C. , and 1475 allows the presumption 
that rights in favor of several persons are joint and one per- 
son may extinguish the same on payment to him alone (96 Cal. 
275), but a decision in 22 Cal. App. 921, appears to hold that 
where a mortgage runs to husband and wife the interest of the 
wife is presumed to be her separate property under 164 C. C. 
(Miller vs. Brode, 199 Pac. 531; Crowley vs. Bank, 159 Pac. 194.] 

Joint deposits made payable to either or the survivors 
are governed by 1828 C. C. 

Mortgages and notes running to A or B were formerly 
not held good. (See A. and Eng. Encyc. of Law, under Bills and 
Notes, p. 113.) The payee is uncertain, being a promise to 
pay A if the promisor does not pay B. It is, however, cus- 
tomary to accept a release by one where the check in payment 
is made payable to both. The negotiable instrument law of 
1917 permits a note to be made to "one or some of several pay- 
ees". (See 28 Cal. App. 1081 and 3089 C. C. , Corpus Juris, 
177, Sec. 303.) 



255 



JOINT TENANCY - LEASE BY ONE TENANT ONLY: 



A and B own as joint tenants. B is insane. A executes 
an oil lease to C, an undivided half of land. If A dies, B is 
entitled to possession of the v/hole (177 Cal. 211). Lease 
severs the joint tenancy as to possession only, not as to title 
(172 Cal. 174). The oil lease gives the right to take away part 
of the real estate which belongs to both tenants (155 Cal. 140). 
B may recover judgment for half of oil produced; may enjoin C 
from molesting the land and lease is void in so far as it in- 
jures the interest of non-consenting tenant. (See W. Virginia 
cases, 52 S. E. 480, 19 S. E. 436, 27 S. E. 411.) If a lease was 
being worked before joint tenancy was created and was executed 
by one of several tenants in common, then there is no waste 
to be restrained (64 Cal. 134). 

QUESTIONABLE LANGUAGE: 



A deed is sometimes found running to "John Smith and 
Mary Smith, his wife, as joint tenants and to their heirs and 
assigns". Under 1070 C. C. it is provided that "If several 
parts of a deed are irreconcilable, the former part prevails." 
But in the well-established rule in Barnett vs. Barnett (104 
Cal. 300) construing this section, it was decided that the 
intention of the parties must be ascertained from the entire 
instrument, the habendum as well as the premises being con- 
sidered, and if it appear from the "habendum" that the grantor 
intended to restrict the estate, the habendum will prevail 
over the granting clause which controls and may even destroy 
the previous words of grant. Such deeds should be regarded 
with suspicion. 

VESTING UNDER QUESTIONABLE DEED : 

In case of any question as to the sufficiency of a 
deed to create a joint tenancy, do not vest "as joint tenants" 
but use the ordinary form for vesting, and add as a note: 

" The deed from to and 

, dated , and recorded in 

book , page of deeds, purports to create a joint 

tenancy. The language used in said deed is not deemed suf- 
ficiently explicit to determine the intention of the parties 
in that respect. " 



(End of Subject) 



260 



JUDGMENTS 
DEFINED : 



A judgment is the final determination of the rights 
of the parties in an action or proceeding. (577 C. C. , 167 Cal, 
27, 159 Cal. 448.) 

EXTENT OF JUDGMENT: 



The relief granted to the plaintiff, if there be no 
answer, cannot exceed that which he shall have demanded in his 
complaint, but in any other case, the court may grant him any 
relief consistent with the case made by the complaint and em- 
braced within the issue. (580 C. C.) 

IN WHAT CASES ENTERED : 

Judgment can legally be entered in one of the follow- 
ing proceedings (among others) : 

(a) By default in action or proceedings. 
(585, 871 C. C. P. ) 

(b) By confession of the parties. 

By writing filed in open court by party 
or attorney in pending proceedings or action. 
By verified written statement of party 
filed with clerk of Justice without action. 
(1132 C. C. P. ) 

(c) By Court nunc pro tunc. (140 Cal. 178, 165 Cal. 
' 591.) 

WHEN ENTERED: 



A judgment is entered when recorded in the Judgment 
Book. (668 C. C. P. ) 

WHEN DOCKETED: 



A judgment is docketed when entered in the judgment 
docket. (672 C. C. P. ) 

EXTENT OF LIEN: 



All money judgments rendered in the Superior Court or 
the Federal Courts become a lien from the time the judgment is 
docketed upon all the real property to the judgment debtor, 
not exempt from execution owned by him at the time, or which 
he may afterwards acquire until the lien ceases. The lien 
continues for five years unless it is stayed on appeal. (671 
C. C. P. , 97 Cal. 203. ) 

A judgment is not a lien upon property protected by a 
valid declaration of homestead. (See Homesteads.) 



261 



DEFEATED BY UNRECORDED DEED 



A deed by the judgment debtor dated and actually de- 
livered prior to docketing the judgment, altho not recorded 
till thereafter, will defeat the judgment. The judgment credi- 
tor is not in the class of "purchasers" as defined by the 
code who take priority by recordation. (1214 C. C.) However, 
it is not safe to ignore such judgments. (100 Cal. 590.) 

DEATH OF DEBTOR BEFORE JUDGMENT: 



If a party die after a verdict or decision upon any 
issue of fact, and before judgment, the court may nevertheless 
render judgment thereon. Such judgment is not a lien on the 
real property of the deceased party, but is payable in the 
course of administration of this estate. (669 C. C. P., 49 
L. R. A., 1534 C. C. P., 103 Cal. 252.) 

TRANSCRIPT OF JUDGMENT: 






The transcript of the original docket of any judgment, 
the enforcement of which has not been stayed on appeal, cer- 
tified by the clerk, may be filed with the recorder of any 
other county, and from such filing the judgment becomes a 
lien upon all the real property of the judgment debtor not 
exempt from execution in such county, owned by him at the time, 
or which he may afterward, and before the lien expires, acquire. 
The lien continues for two years unless judgment is pre- 
viously satisfied or the lien otherwise discharged. (674 C. C. P.) 

All transcripts and abstracts of judgments become a 
lien at the date they are recorded in the Recorder's office. 
The lien does not extend beyond five years from the date of 
the judgment. (674 and 900 C. C. P.) At the expiration of the 
two-year period above referred to a new transcript may be 
filed at any time before the expiration of the five-year period. 

Under Sec. 674, C. C. P., as amended August 16, 1923, a 
transcript of judgment is good for five years. This affects 
both Superior Court and Federal Court judgments. The amend- 
ment is not considered to be retroactive so as to affect 
judgments docketed prior to said date. 

CERTIFIED COPY NOT COMPLIANCE: 



A certified copy of the judgment is not an "abstract' 
or transcript of same, and the filing thereof is not equiva- 
lent to filing an abstract. (52 Cal. 399.) 

JUSTICE COURT JUDGMENTS: 



A judgment rendered in a Justice's Court creates no 
lien upon any lands of the defendant, unless an abstract there- 
of is filed in the office of the recorder of the county in 



262 



which the lands are situated. From the time of the filing, the 
judgment becomes a lien upon all the real property of the judg- 
ment debtor, not exempt from execution in such county, owned 
by him at the time, or which he may afterward, and before the 
lien expires, acquire. The lien continues for two years, unless 
the judgment be previously satisfied. 

Abstracts of judgments from the Justice's Court filed 
in the County Clerk's office are not liens. The purpose of 
such filing is to have an execution issued to another county 
within this State. (899 and 900 C. C. P.) 

JUDGMENTS FOR COSTS: 



Judgments for costs are nearly always docketed as open 
judgments, the amount being filled in by the clerk later, 
after the cost bill has been filed. 

Judgment for costs is inseparably connected with main 
judgment and bond to stay execution is not necessary where 
main judgment is appealed from. (98 Cal. 442.) 

JUDGMENT FOR ALIMONY: 



For alimony or maintenance or attorney's fees for 
fixed sum per month for definite period is a lien on real 
property when docketed. (40 Cal. App. 1, 183 Pac. 862.) 

Thus, judgment for alimony $7.00 per week for three 
years is not a lien. Judgment for $75.00 attorney's fees 
payable $10.00 a month is a lien. 

ALL JUDGMENTS EQUAL LIENS, WHEN: 

All attach as equal liens on property acquired later 
by debtor. Creditor who first gets execution obtains prior 
lien, but others are redemptioners on foreclosure. (179 Pac. 
190, 57 Cal. Dec. 262. ) 

ASSIGNMENT NOT GOOD NOTICE: 



Assignment of judgment is not constructive notice as 
code makes no such provision. (163 Cal. 8.) 

JURISDICTION ON DEBTOR: 



Where judgment recites service of summons it will be 
presumed that summons was actually served. (Bernhard vs. Wall, 
59 Cal. 428. ) 

JUDGMENTS AGAINST ADMINISTRATORS, TRUSTEES, ETC. : 



In an action prosecuted or defended by an administra- 
tor, executor or trustee costs may be recovered against him 
in his own right, but are chargeable against the estate or trust 



263 



unless the court directs otherwise. (1031 C. C. P.) Also see 
1509 C. C. P. 

When a judgment does not provide that costs be payable 
in due course of administration the executor is personally 
liable and execution may issue against him (103 Cal. 252). The 
same rule applies to trustees. 

DEFICIENCY JUDGMENT, ATTACHES WHEN ; 

A deficiency judgment in a foreclosure action becomes 
a lien only after the sale of the premises and docketing of the 
deficiency judgment and continues for five years from the date 
of entry of the original foreclosure decree. (726 C. C. P., 
30 Cal. 621, 119 Cal. 22.) 

DEFICIENCY JUDGMENT, A LIEN ON LAND REDEEMED ; 

Deficiency judgment attaches to land redeemed by debtor 
even tho it was sold under same judgment. (92 Pac. 561, Montana 
decision. ) 

DEFICIENCY J UDGMENT, ONLY AFTER SALE: 

Deficiency judgment cannot be obtained until security 
is exhausted and sale made. (140 Cal. 80.) 

JUDGMENT , INTEREST AFFECTED: 

The interest which the lien of a judgment affects is 
the actual interest which the debtor has in the property and 
a court of equity will always permit the real owner to show 
(there being no intervening fraud) that the apparent owner- 
ship of another is or was not real ; and when the judgment debtor 
has no other interest except the naked legal title, the lien 
of the judgment does not attach. (Riverdale Mining Co. vs. 
Wicks, 14 Cal. App. 536.) 

JUDGMENT AGAINST A LESSEE: 



A leasehold estate for a definite period is personal 
property or chattel real under 765 C. C. (142 Cal. 529). A 
judgment is no lien, but if the lease runs for an indefinite 
term or as long as oil is produced by the lessee such lease 
is real property or a freehold interest and the judgment is 
a lien. (Bekins vs. Smith, 37 Cal. App. 222.) 

But execution issued upon the leasehold interest 
creates a lien. (119 Cal. 192.) 

A leasehold estate for a term of years is personal 
property at common law. The common law rule has not been 
changed in this State, and an estate for years is not subject 
to the lien of a judgment upon real property, and no lien 



264 



can be acquired thereupon under a judgment until levy of execu- 
tion. (158 Cal. 738.) 

JUDGMENT AGAINST MUNICIPALITY: 



A judgment rendered by the court having jurisdiction 
of the subject matter and of the parties, declaring that 
property held by a city for public use is the property of a 
private individual, is, after it has become final, conclusive 
upon the city and the public. (Guaranty Trust & Savings Bank 
vs. City of Los Angeles, 61 Cal. Dec. 736.) 

AGAINST VENDEE UNDER CONTRACT: 

Is no lien where he has not paid up in full. 

In the case of Belieu vs. Power (201 Pac. 620) it was 
decided that a judgment lien does not attach to an equitable 
interest in real property acquired by a vendee under a con- 
tract of purchase. The vendee having paid a portion of the 
purchase price and entered into possession is not the owner 
of said real property as referred to in 671 C. C. 

AGAINST VENDOR : 

Is a lien on land under contract of sale up to amount 
he still has in title unpaid for by vendee. Creditor may take 
proceedings to compel vendee to pay enough to clerk of court to 
satisfy his claim. (139 Pac. 514, 161 Pac. 838, 96 Pac. 1065; 
see 57 L. R. A. 643, 198 Pac. 432.) 

A LIEN ON EQUITABLE I NTEREST: 

A judgment for money docketed against owner of equit- 
able interest in land, such as vendee's interest under con- 
tract of sale or purchaser's interest under sheriff's cer- 
tificate on execution, is a lien on equitable interest of 
judgment debtor. (20 Cal. 388, 58 Cal. 373, 15 R. C. L. 794, 
Sec. 249; 83 Cal. 521, 31 Cal. 294, 70 Cal. 296, 12 L. R. A. 
741, a Minnesota case.) 

AGAINST BANKRUPT : 

The lien of the judgment acquired more than four 
months prior to the filing of the petition in bankruptcy is 
not affected by the discharge. (American Improvement Co. vs. 
Lilienthal, 29 Cal. App. Dec. 697. Also Oilfields Syndicate 
vs. American Improvement Co., 256 Fed. 979.) See under "Bank- 
ruptcy. " 

FEDERAL JUDGMENT: 



Unless the State has passed a law providing for the 
docketing or recording of Federal judgments in the same manner 



265 



as State judgments are docketed or recorded, such judgments 

are a lien throughout the district. (44 Fed. 546, 235 Fed. 101, 

They are collected the same as State court judgments. 
(117 Fed. 699; Sec. 916, U. S. Rev. Stat.) 

The amendment to Section 671, C. C. , in effect August 
18, 1923, provides that the transcript of a Federal court judg- 
ment preserves the lien for 5 years from the date of its 
docketing. This amendment, if effective, limits Federal 
judgments to counties where the judgment was rendered and to 
counties where a transcript has been filed. But, as there is 
no provision in law for the docketing of a Federal judgment, 
there is doubt as to the validity of this amendment, and it 
cannot be relied upon. Search should be made against Federal 
liens. 

FINE AS LIEN; 

A fine in a criminal proceeding is a lien as decided 
in Thompson vs. Avery, 11 Utah 214 (39 Pac. 829). See 1206 
Penal Code, 113 Cal. 35, 171 Pac. 1097, and Federal fine is a 
lien, but after August 17, 1923, must be docketed under 671 
or 674 C. C. P. 

FEDERAL JUDGMENTS AND FINES: 



A fine, docketed, is a lien against property of debtor, 
Imprisonment and discharge does not satisfy judgment. (The 
fine is the punishment, custody is method of executing it, 
8 R. C. L. 283.) Such a judgment may be enforced by execution. 
Federal judgments need not be filed in county clerk's or 
recorder's offices. (See 275 Fed. 460, Federal judgment is 
lien throughout district.) 

SMALL CLAIMS COURT: 



In 1921 - Section 927 was added to the Code of Civil 
Procedure for the establishment of what is known as the 
"Small Claims Court". Said section provides that the juris- 
diction of the court shall be confined to cases for the re- 
covery of money only where the amount claimed does not exceed 
the sum of $50.00. Subdivision N of said section provides that 
an abstract of judgment rendered in said court may be filed 
in the office of the county clerk and said judgment docketed in 
the judgment docket of the Superior Court. Such docketing 
shall not be construed as creating a lien upon the lands of 
the judgment debtor, but shall be treated by the searcher in 
the same manner as the docketing in the Superior Court of the 
ordinary judgment rendered in the Justice's Court. 



266 



SATISFACTION OF JUDGMENTS 



JUDGMENT MAY BE SATISFIED 



1. By endorsement of satisfaction on the margin 
of the record of the judgment book, either 
by the judgment creditor or by his attorney 
of record. (675 C. C. P.) 

2. By release of satisfaction executed and ac- 
knowledged and filed among the papers in 
the case. 

3. By the granting of a new trial. 

4. By appeal and the filing of a bond to stay 
execution. 

5. The searcher should ascertain whether objec- 
tion has been made to the sureties on the 
appeal bond. 

6. In a proper case by an order of court 
setting aside the judgment. 

7. By return of an execution showing the 
judgment satisfied in full. 

The searcher must not rely upon the clerk's notation on 
the docket to the effect that the judgment has been satisfied, 
but must ascertain that the judgment has been satisfied in one 
of the ways above set forth. 

If the judgment has been partially satisfied, the search- 
er's report should show such fact. 

PARTIAL DISCHARGE BY ATTORNEY NOT GOOD; 

An attorney-at-law has no power, in the absence of ex- 
press written authority, to release property from the lien of 
a judgment nor to release a judgment in full upon receipt of 
less than the full amount due thereunder. (283 C. C. P., 15 
R. C. L. 299; Freeman on Jdgts., Sec. 464.) 

MUST BE ACKNOWLEDGED : 

A satisfaction of judgment must be acknowledged (675 
C. C. P.) and may be recorded in the recorder's office; in fact 
the best practice is to so record all releases, other than 
full releases, showing certain specific property released 
from the lien of judgments with direction that after being 
recorded the releases shall be forwarded to the county clerk 
and by him filed. 

NEW TRIAL VACATES JUDGMENT: 



An order granting a new trial operates to vacate the 
judgments previously rendered. (28 Cal. 534.) 



267 



APPEAL AND STAY BOND : 

An appeal properly taken and the filing of a stay bond 
"on the part of the appellant by two or more sureties, to the 
effect that they are bound in double the amount named in the 
judgment or order" (exclusive of costs) operates to relieve 
the lien of a judgment from the property of the judgment 
debtor. (942 C. C. P. ) 

The stay bond above referred to should not be confused 
with the undertaking on appeal for ($300) provided for by Sees. 
940 and 941, C. C. P. 



FOR COSTS ONLY : 

If the judgment is for costs only the undertaking 
on appeal (for $300) is sufficient and no stay bond is neces- 
sary. (98 Cal. 442. ) 



JUDGMENT SET ASIDE; 

An order of court setting aside a judgment, as a matter 
of course, terminates its effect. 



OBJECTION TO SURETIES: 

The adverse party has 30 days in which to except to the 
sufficiency of the sureties after having received "notice of 
the filing of such undertaking, and unless they or other 
sureties, within 30 days after the appellant has been served 
with notice of such exception, justify before a judge of the 
court below, upon five days' notice to the respondent of the 
time and place of justification, execution of the judgment, 
order or decree appealed from is no longer stayed; and in all 
cases where an undertaking is required on appeal by the pro- 
visions of this title, a deposit in the court below of the 
amount of the judgment appealed from, and $300 in addition, 
shall be equivalent to filing the undertaking; and in all 
cases the undertaking or deposit may be waived by the written 
consent of the respondent." (948 C. C. P.) 

In all cases where a stay bond has been filed upon 
appeal to the Supreme or Appellate Court, examination must be 
made to see if the court has ordered a new bond under the pro- 
visions of Sec. 954, C. C. P., for if such new bond be not given 
in accordance with the order, the judgment is no longer stayed 
and execution may issue thereupon. (136 Cal. 619.) 

Both sureties must each be worth twice the amount of 
judgment. In Mohn vs. Superior Court, 35 Cal. Dec. 600, on 
7-7-21, execution was upheld because of insufficiency of bond. 



268 



DISCHARGE CAN BE COMPELLED ; 

Whenever a judgment is satisfied in fact, otherwise 
than upon an execution, the party of attorney must give such 
acknowledgment or make such endorsement, and upon motion, the 
court may compel it, or may order the entry of satisfaction 
to be made without it. (675 C. C. P.) 

SURETY COMPANY ALONE SUFFICIENT: 



A surety company may become the sole and sufficient 
surety on the stay of execution on appeal. (Sec. 1056, C. C. P.) 

APPELLANT NEED NOT SIGN BOND : 

It is not necessary for the stay bond to be executed by 
the appellant, it must be executed in his behalf by the sure- 
ties and their bond is sufficient. (Crutes vs. Richards, 9 
Cal. 34-39.) 

QUITCLAI M AS RELEASE : 

Release of separate parcels of land from a judgment by 
quitclaim deed reciting its purpose may not be good (119 Cal. 
283), but should be endorsed on margin of docket. 

RELEASE OF ONE OF SEVERAL DEBTORS : 

Release of one debtor from a judgment does not release 
the other debtors (See 1543 C. C.) unless it is a joint judg- 
ment where all are jointly liable. (113 Cal. 414, 127 Cal. 370.) 

SEARCHING FOR JUDGMENTS: 



It is necessary to search for judgments against each 
successive owner of the fee title, or any part thereof from 
the date five years prior to the date of your search to the 
date of recording of the deed by which the person against 
whom you are searching parted with his title or interest in 
the premises. The notes should show judgments against holders 
of tax titles and of agreements to convey. 

In making an examination of judgment, the searcher should 
in every case ascertain whether any assignment or assignments 
appear among the files in the action. 

A judgment may be satisfied by either the judgment 
creditor or his attorney of record, but a satisfaction as to 
a portion of the judgment debtors or property can be lawfully 
executed only by the judgment creditor himself; the attorney 
of record has no authority to apportion the judgment by satis- 
fying the same as to some of the debtors or as to a portion of 
the property. A satisfaction in full by the attorney of record 
should either acknowledge receipt of the full amount of the 



269 



judgment or recite that the judgment has been fully paid. 

Where property is vested in a married woman presumptively 
as her separate property or as her separate property, other 
than by deed of gift to her from her husband, do not examine 
or show judgments against the husband. Where property is vested 
in the wife by deed of gift to her from her husband, examine 
judgments against the husband and if the claim upon which said 
judgments are founded antedates the deed from the husband, note 
such judgments in writeup. 

Where title is vested in a woman presumptively as com- 
munity property, note unsatisfied judgments against the hus- 
band. 

Do not depend on the files in the case for satisfaction 
or release of judgments, examine the register of actions also. 
The appeal and stay bond will not be found among the papers, 
ask the clerk for them when wanted if they are noted upon the 
Register of Actions. 



DOCKETING UNDER INCORRECT NAME: 

In order to create a judgment lien, the judgment alone is 
insufficient - it must be properly docketed ; and among other 
essentials to a proper docketing of the judgment is that it 
be docketed against the judgment debtor in his correct name. 

A subsequent innocent purchaser from a judgment debtor 
of property acquired and conveyed under a distinct name does 
not take title subject to the lien of a judgment docketed 
against the judgment debtor in another name. (Huff vs. Sweet- 
ser, 8 Cal. App. 689.) 

But where judgments appear against persons having names 
similar to those in the search, always set them out. (See 50 
Cal. 517, where the given name of the judgment debtor was en- 
tirely omitted and the judgment lien was held good.) 



270 



ATTACHMENTS 



ATTACHMENT DEFINED 



An attachment is a seizure of defendant's property as 
security for any judgment plaintiff may recover in the action. 
The attachment is merely a proceeding ancillary to the action, 
by which the party is enabled to acquire a lien for the 
security of his demand by a levy made before instead of after 
the entry of a judgment. (11 Cal. App. 27.) The law allowing 
an attachment is strictly construed and must be strictly fol- 
lowed. (537 C. C. P., 11 Cal. App. 27, 148 Cal. 293, 3 Enc. PI. 
& Pr. 3, Stand. Proc. 238, 4 Cyc. 395, 6 C. J. 28.) 

HOW LEVIED : 

For method of levy of the attachment see Sec. 541, 
C. C. P. 

ON PROPERTY IN ANOTHER'S NAME: 

Sec. 542, C. C. P., provides that "Real property, or an 
interest therein, belonging to the defendant, and held by any 
other person, or standing on the records of the county in the 
name of any other person must be attached, by filing with the 
recorder of the county, a copy of a writ, together with a de- 
scription of the property, and a notice that such real property, 
and any interest of the defendant therein, held by or stand- 
ing in the name of such other person (naming him) are attached." 

An attachment on the interest of A of record in the name 
of B fixes a lien on said interest if any exists (101 Cal. 
224). Recording of writ gives notice to third parties. If 
gone to judgment, lien remains unless stay bond is filed. If 
B had conveyed out by prior dated but later recorded deed, 
it becomes a question of fact as to delivery of the deed 
whether the attachment holds good. (See 34 Cal. App. 184 to 
contrary nullified by 164 Cal. 537.) 

ATTACHMENT PRESERVES PRIORITY OF LIEN: 

A purchaser at a subsequent execution sale after the 
suit has resulted in a judgment acquires all interest of the 
judgment debtor from and after the levy of the attachment, 
and although the lien of the attachment is merged in that of 
the judgment (37 Cal. 121, 72 Cal. 65), it in effect relates 
the judgment back to the levy of the writ, and remains in 
force sufficient to preserve the priority of the judgment 
lien as against liens attaching subsequent to the filing of 
the attachment and prior to the docketing of any judgment 
rendered in the attachment suit. 



271 



PERIOD OF ATTACHMENT LIEN; 

The attachment lien continues for three years after the 
date of levy unless sooner released or discharged, or unless 
the action be sooner dismissed or goes to judgment. On motion 
made not less than five or more than sixty days before the ex- 
piration of said three-year period, the court may extend the 
period not to exceed two years from such expiration date. 
(542a C. C. P.) 

HOMESTEAD DEFEATS ATTACHMENT: 



A declaration of homestead recorded after the attach- 
ment and before judgment is rendered and docketed will de- 
feat the lien of the judgment as t o the property covered by 
the declaration, provided the homestead is good in fact and 
the declaration conforms to the statute. (54 Cal. 81.) 

DEED OF LAND SUBJECT TO ATTACHMENT : 

When the owner of property covered by a recorded 
attachment conveys the same, the attachment suit should be 
examined and the name of the late owner run for any judgment 
that may be rendered after he has parted with the title. 
Though the judgment itself may not be a direct lien, the at- 
tachment remains. (121 Cal. 647.) Nor is the attachment 
merged into the judgment and the lien of the attachment is 
not released by an undertaking upon appeal to stay execution 
upon the judgment. (97 Cal. 203.) 

ATTACHMEN T, HOW RELEASED : 

"An attachment as to any real property may be released 
by writing signed by the plaintiff, or his attorney, or the 
officer who levied the writ, and acknowledged in the like 
manner as a grant of real property. Such attachment may also 
be released by an entry in the margin of the record there- 
of, in the county recorder's office." (560 C. C. P.) 

It may be discharged by an order of court if it was im- 
properly or irregularly issued. (556-558 C. C. P.) 

The court may discharge the attachment on motion of de- 
fendant upon notice to plaintiff. (6 Cal. App. 274.) 

The attachment can be released by the officer upon being 
shown that the property is exempt from levy. As to what prop- 
erty is exempt from attachment or execution see Sec. 690, 
C. C. P. 

Dismissal of the action discharges an attachment. 

The code nowhere specifically provides for a deposit 
of money for the release of an attachment. 



272 



EXECUTIONS 

DEFINED : 

An execution is a writ issued out of a trial court to 
a sheriff, constable, or commissioner, appointed by the court, 
to enforce a judgment against the person or property of a 
judgment debtor. (681 C. C. P., 131 Cal. 527.) 

TO WHOM ISSUED: 

Executions issue out of trial courts to a sheriff, con- 
stable or commissioner appointed. (94 Cal. 220, 131 Cal. 527.) 

WHO MAY DEMAND EXECUTION AND WHEN: 



The party in whose favor judgment is given may, at any 
time within five years after the entry thereof, have a writ 
of execution issued for its enforcement. If, after the entry 
of the judgment, the issuing of execution thereon is stayed 
or enjoined by any judgment or order of court, or by opera- 
tion of law, the time during which it is so stayed or enjoined 
must be excluded from the computation of the five years within 
which execution may issue. (681 C. C. P.) 

An execution may be issued after the lapse of five years 
upon leave of court. (685 C. C. P.) 

WHEN AND HOW RETURNABLE: 



The execution may be made returnable at any time not 
less than 10 nor more than 60 days after its receipt by the sher- 
iff, to the clerk with whom the judgment roll is filed. When the 
execution is returned the clerk must attach it to the judgment 
roll. If any real estate be levied upon, the clerk must re- 
cord the execution and the return thereto in a book called 
the execution book. It is evidence of the contents of the 
originals whenever they or any part thereof may be destroyed 
or mutilated. (683 C. C. P., 94 Cal. 217.) 

Judgment creditor must sell within period of his lien 
and execution does not extend lien or create new lien. (46 
Cal. 654, 37 Cal. 122.) 

HOW DISCHARGED: 

An execution may be recalled, quashed or set aside as 
f ollows : 

(a) When stayed after issue by giving bond or 
by order of court. (166 Cal. 325, 563.) 



273 



(b) When judgment is void or has been satisfied 
or discharged. (98 Cal. 355, 71 Cal. 183, 
73 Cal. 5, 81 Cal. 202. ) 

(c) When writ has not been properly issued. 
(92 Cal. 393, 93 Cal. 120.) 

(d) By separate action to enjoin enforcement. 
(130 Cal. 275.) 

EXECUTION AFTER DEATH OF PARTY; 

Notwithstanding the death of a party after the judgment, 
execution thereon may be issued, or it may be enforced as 
follows : 

In case of the death of the judgment creditor, upon 
the application of his executor or administrator, or successor 
in interest. 

In case of the death of the judgment debtor, if the 
judgment be for the recovery of real or personal property, or 
the enforcement of a lien thereon. (686 C. C. P., 123 Cal. 657, 
69 Cal. 517, 42 Cal. 129, 29 Cal. 359.) 

WHEN NO DEED FOUND RECORDED: 



Successor in office to sheriff who sold is authorized 
to issue deed. (See County government acts.) 

(End of Subject) 



}80 



MAPS 



The Act requiring recording of maps, approved March 
9, 1893, amended 1901, was repealed June 11, 1913. 

The Act approved March 15, 1907 (Stat. 1907, p. 290, 
amended see post), provides: 

When land is subdivided for selling by reference to 
plat the owners must file with the county recorder an accurate 
map thereof complying with certain requirements, among which 
are the following: 

Parcels dedicated for public use must show dimen- 
sions, boundaries and courses of boundary lines. 
All lots not dedicated must be designated by num- 
ber or letter with dimensions, etc. 

All parcels offered for dedication and not ac- 
cepted must be designated by number or letter. 
The exact location of the subdivision with refer- 
ence to adjacent subdivisions or U. S. survey cor- 
ners must be shown. 

Map must be on cloth, 18" x 26", or 13" x 18". 
If more than one sheet is used, sheets must be 
numbered and show connections. 

The map must be signed by all owners "and also 
by all other persons whose consent is necessary 
to pass a clear title to the land" and all sign- 
ers must acknowledge. 

All parcels for public use must be dedicated. 
The map, if any part is dedicated, must be pre- 
sented to the supervisors, trustees, city coun- 
cil, or others who control public highways, who 
shall endorse which highways are accepted. Every 
map must have a title which must not conflict 
with names of other subdivisions. The county 
recorder must examine name or title and compare 
it with the records and may refuse to file the 
plat in case of conflict with previous name. 
No person may offer for sale or sell any lot by 
plat not in strict accordance herewith under 
penalty of fine and imprisonment. 

It is expressly provided that the recordation of any map 
not executed and approved as required by the act shall be NULL 
and VOID. 

The amendment in effect July 22, 1919 (Stat. 1919, p. 725) 



281 



requires map to be submitted to city or county planning com- 
mission or governing body for approval, which must be endorsed 
thereon and map cannot be filed without it. Highways dedicated 
may be made to conform to surrounding streets. 

If the land lies in unincorporated territory and within 
3 miles of any city or town, the board of supervisors must sub- 
mit the plat to the planning commission, or engineer of the 
city nearest to it. 

The amendment in effect July 22, 1919 (Stat. 1919, p. 
164) , modifies the requirements for a tax bond, none being neces- 
sary with a map recorded after the date on which current taxes 
become payable and before the date of the next year's assess- 
ment. 

Another amendment in effect July 22, 1919 (Stat. 1919, 
p. 176) , provides that when a map is filed to show as acreage 
land previously subdivided, no survey or certificate by sur- 
veyor or engineer shall be required. 

An Act in effect July 22, 1919 (Stat. 1919, p. 329), pro- 
vides for the exclusion of parts of and vacation or alteration 
of maps. 

Two-thirds of the owners in area of any recorded plat 
may apply to the Superior Court and cause part of any map to 
be excluded and the map altered or vacated upon terms and 
procedure specified. Public highways are not affected. 

On filing copy of decree county recorder shall make 
notation on the map and a new plat must be filed. 

Act in effect July 29, 1921 (Stat. 1921, p. 548), pro- 
vides that all or part of land subdivided may be excluded from 
map by Superior Court on petition of two-thirds of owners. Pub- 
lic streets are not affected. Repeals similar act in Stat. 
1919, p. 329. 

Map recording act of March 15, 1907, as amended in 1921 
(Stat. 1921, p. 1002), provides that governing body may require 
before filing an easement for storm drain along any natural 
water course. 

The Act approved June 1, 1917 (Stat. 1917, p. 1653), 

cured defects in plats filed up to January 1, 1917. Sales by 

reference to same and recorded conveyances of land by said map 
are validated. 

The curative act was brought down to January 1, 1921 
(Stat. 1921, p. 827). 

THE AMENDMENTS OF 1923: 



The amendment in effect August 17, 1923 (Stat. 1923, 



282 



p. 378), provides for dedication of a right of way for storm 
drain in these words: 

"In the event that the tract of land shown 
upon the map or plat is traversed by any 
natural water course or channel, such gov- 
erning body may require as a condition prec- 
edent to the approval of such map or plat, 
either the dedication to public use of an 
easement or a conveyance to the political 
subdivision of a right of way for storm 
drain purposes to conform substantially 
with the lines of such natural water course 
or channel. " 

NOTE: Care should be taken to see if such an ease- 
ment has been dedicated. It is usually shown by dotted lines 
on the map and also in the formal dedication. Where it occurs 
the easement must be excepted in any certificate or policy 
covering the land affected. 

MAPS TO BE MADE IN DUPLICATE: 



The Amendments of 1923, p. 378 (Aug. 17, 1923), require 
maps be made and filed in duplicate. 

CONTRACTS _IN VIOLATION OF MAP ACT VOID: 

The California Supreme Court has held (Smith vs. Bach, 
183 Cal. 259) a contract violating the terms of the act is void. 
A statute prohibiting the making of contract except in a cer- 
tain manner, ipso facto makes them void if made in any other 
way. See, also, Barnes vs. Shank, 12 Cal. App. 391, where sales 
were held good if, in addition to reference to a map wrongly 
recorded, a mete and bound description was used. (Corpus 
Juris, Vol. 18, p. 184, Sec. 67, treats the matter liberally and 
cites cases from sister States.) Doubtful cases should be 
referred to counsel. 

A contract for the sale of land by reference to an 
unrecorded map in violation of the provisions of the Act of 
March 15, 1907 (Statutes 1907, p. 290), as amended in 1913 
(Statutes 1913, p. 570), is void. (Young vs. Laguna Land and 
Water Co., Cal. App. Dec. 388.) 

DEDICATION, EFFECT OF: 

Dedication consists of two parts to be complete, 
an offer and the acceptance thereof. 

Where a dedication is complete, the owner loses control 
over its use and the dedication cannot be later qualified by 
any act on his part. (Archer vs. Salinas City, 93 Cal. 43.) 



283 



The adoption by the city of a later map omitting the 
showing or designation of a former street cannot operate as 
an abandonment thereof. (Eureka vs. Gates, 137 Cal. 89.) 

Where the owner filed a map showing streets for public 
use no formal acceptance by the authorities is necessary and 
until such acceptance the owner holds title, dedicated in 
trust for the public. (Daly City vs. Hollbrook, 28 Cal. App. 
Dec. 66.) 

A deed by map reference gives grantee private easement 
over all streets and ways shown on map apart from public dedi- 
cation. 

When streets are marked on ground in absence of map, 
appurtenant right to use streets rests on equitable estoppel. 
(Danielson vs. Sykes, 157 Cal. 686.) 

The dedicator retains the fee and the public acquires 
an easement. (31 Cal. 585.) 

As to what are considered proper highway uses in Cali- 
fornia see Gurnsey vs. N. Cal. Power Co. (160 Cal. 699). 

DEDICATION BY HUSBAND ALONE INSUFFICIENT; 

To dedicate a street or create an easement against 
community property, the wife must join in the deed. (Cordano 
vs. Wright, 159 Cal. 610 to 620.) 

MORTGAGE OMITTED FROM MAP; 

The security of a mortgage given prior to dedication 
cannot be impaired by the mortgagor's plat, and purchaser at 
foreclosure sale would acquire title free of the dedication, 
but a deed to the mortgagee in satisfaction of the debt after 
filing map would be subject to mortgagor's dedication. (93 Cal. 
43.) 

ENDORSEMENT OF MAP BY TRUSTEE: 



The usual form deed of trust gives the trustee no 
power to dedicate any of the property to public use. 

A trustee cannot make a valid dedication without con- 
sent of the beneficiary. (160 Fed. 794, 22 L. R. A. 1026.) If 
the beneficiary has knowledge of such dedication and makes no 
objection, lapse of time would estop him as against the public 
easement. 

ATTEMPTED DEDICATION BY ADMINISTRATOR: 



Administrator of estate has not power to dedicate to 
public use any real property of the estate and probate court 



284 



has not power to authorize same. (74 Cal. 526, 79 Cal. 388, 59 
Cal. 206; also 137 Iowa, 114 N, W. 896, 141 Cal. 366.) 

DEDICATION OF PARK OR PLAZA ; 

The extent of the easement is determined by the "scope 
of the dedication." The officials attempted to erect a town 
hall in the plaza of the town of Hayward dedicated in 1854 by 
the word "Plaza" upon the filed plat. This was held to be 
without the scope of the dedication in Kelly vs. Town of Hay- 
ward (219 Pac. 440) . 

The proper uses of land dedicated as a public park 
were carefully defined in the leading case of Spires vs. Cy. 
of Los Angeles (150 Cal. 64). The distinction was drawn be- 
tween business and recreational purposes ; the park being 
seven miles from center of the city, its purposes would be 
essentially recreational. 

The attempted taking of land dedicated as a park for 
street purposes was forbidden in Hall vs. Fairchild G. W. Co. 
(May, 1924), Dist. Ct . of Appeals. This decision sustained the 
rule that when land is once dedicated for park purposes it is 
beyond the authority of the city, or even the Legislature, to 
withdraw it therefrom. 



VACATION 

VACATION AFFECTS EASEMENT ONLY, CA NNOT BE CONDITIONAL: 

The board of supervisors has power to vacate the public 
easement, but has no power to reserve sand in the vacated street. 
Its only power under the statute is to maintain a highway, the 
owner retaining all rights in the soil not inconsistent there- 
with. (Guernsey vs. N. Cal. Power Co., 160 Cal. 699.) 

VACATION OF PARK OR PLAZA : 

The case of People vs. Holloway (93 Cal. 241) establishes 
the principle that a decree obtained against city or county may 
be pleaded as a bar against any attempt to enforce the easement. 

PUBLIC PARKS: 

May be abandoned by municipal corporations with consent 
of original dedicators and lands sold. (Stat. 1915, p. 1251, 
and 1919, p. 237. ) 

IRREGULAR VACATION PROCEEDINGS UPHELD: 

Held good in spite of irregularity or want of notice. 
(16 Cal. App. 72, 148 Cal. 635.) 



(End of Subject) 



290 



MECHANICS' LIENS 



The present Mechanics' and Materialmen's Lien Law was 
passed in 1911 (see amendments in effect July 19, 1919) and is 
set out in the Code of Civil Procedure, Sees. 1183 to 1202. 

LIEN DEFINED : 

A lien is a charge imposed upon specific property by 
which it is made security for the performance of an act. (1180 

C. C. P.) 

WHO MAY CLAIM LIEN: 

(a) Every original contractor within 60 days after 
the completion of his contract. 

(b) Every person save the original contractor, 
within 30 days after he has ceased to labor 
or to furnish materials, or both; or, at his 
option, within 30 days after the completion 
of the original contract, if any, under which 
he was employed, or the completion of the 
structure. 

WHO IS AN ORIGINAL CONTRACTOR: 

A painter who contracts with the owner to paint a 
building and furnish materials is an original contractor. 
(92 Cal. 235.) 

When owner constructs building under distinct contracts 
for different departments of work, each person contracted with 
is an original contractor and has 60 days to file lien claims 
after completion. (106 Cal. 233.) 

STATUTORY REQUIREMENTS OF CLAIM : 

The claim of lien must be filed in the recorder's 
office and must contain 

(a) A statement of the demand, after deducting 
all just credits and offsets. 

(b) The name of the owner or reputed owner, if 
known. 

(c) The name of the person by whom he is employed 
or to whom the materials were furnished. 

(d) A statement of the price, if any, agreed upon 
for the same and when payable, and of the work 
to be done and when the same was done, if 
agreed upon. 



291 



(e) A description of the property to be charged 
with the lien, sufficient for identification. 

(f) Claim must be verified by the oath of claim- 
ant or of some other person. (1187 C. C. P.) 



PROPERTY SUBJECT TO LIEN: 



The land upon which any building or improvement is con- 
structed, or so much as may be required for the convenient use 
and occupation thereof, is subject to the lien if owned by the 
person causing the improvement to be made at commencement of 
work or of furnishing materials, but only to the extent of his 
'interest, except as provided by Sec. 1192, C. C. P., under which 
section work will be presumed to have been done at the instance 
of the owner unless he file notice of non-responsibility. 

There is no limitation as to the interest subject to 
the lien whether it is legal or equitable. (178 Cal. 674.) 

FARM LAND EXEMPT: 



Young vs. Shriver, Feb. 28, 1922 (C. A. D. 37, p. 510), 
decided that mechanics' liens do not apply to agricultural lands, 

AMOUNT OF LIEN: 



The amount which can be recovered is not limited by the 
amount which the owner owes the contractor. The owner, how- 
ever, may limit the amount payable by demanding a bond from the 
contractor and filing same, which bond shall be a guaranty for 
the payment of the labor and materials. If the owner files 
the original contract with the contractor's bond in an amount 
not less than 50 per cent of the contract price, the effect is 
to limit the amount of liens recoverable to the amount found 
due from the owner to the contractor. Any sum found due be- 
yond this will result in a deficiency judgment for the dif- 
ference against the contractor and his sureties upon the bond. 
(1183 C. C. P.) 

NOTICE OF WORK DONE: 

Material and labormen may notify the owner of materials 
and labor furnished or contracted for (1184 C. C. P.) and the 
owner may demand in writing a similar notice from them at any 
time before or after the work is commenced. The owner is not 
compelled to withhold any money from the contractor, but if he 
pays the original contractor after the above notice, he does 
so at his peril. 

NOTICE OF COMPLETION: 

After completion of any contract or improvement or 
within 10 days after cessation of labor for a period of 30 



' 



• 






292 



days, the owner has 10 days in which to file in the county re- 
corder's office a notice of completion or cessation of labor. 
If not so filed all persons have 90 days after actual comple- 
tion of the improvement to file their claims of lien. (1187 
C. C. P.) Under this section as it formerly stood the filing 
of a notice of .completion was necessary only when a contract 
existed. Where there was no original contract such liens must 
be filed within thirty days after ceasing to labor or to fur- 
nish materials. (1187 C. C. P., construed in Irwin vs. Silva, 
40 Cal. App. 135.) This section was amended, effective July 
22, 1919, to allow the owner to file his notice upon comple- 
tion of the contract or upon cessation of labor or to file it 
upon completion of the improvements. 

The notice of completion must state the date when the 
work was completed or on which cessation of labor occurred, 
together with his name and the nature of his title and a de- 
scription of the property sufficient for identification. The 
notice must be verified by the owner or some person on his 
behalf. The recording fee is $1.00. 

If the notice is not filed all persons have 90 days 
after completion of the improvement to file their claims of 
lien. 

The time allowed within which to file the claim of lien 
begins to run from the date of the filing of the notice of 
completion and not from the date of actual completion. (Nelson 
vs. Hoge, 35 Cal. App. Dec. 735.) 

The word "owner" includes all persons having any as- 
signable interest (27 Cyc. 52). If "A" and "B" own as tenants 
in common and "B" orders the improvements made, "A's" interest 
may be subjected to the lien if he had knowledge of the im- 
provements and did not give notice of non-responsibility. If 
"A" had no knowledge his interest would not be subjected to the 
lien. (173 Cal. 667 and 23 Cal. App. 687.) If the wife owns as 
separate property the husband cannot subject the property to 
the lien by ordering improvements without his wife's consent 
if she had no knowledge of the same. (41 Cal. App. 449.) If "A" 
owns and "B" is in possession under a contract of sale and "B" 
orders the improvements, "A's" interest cannot be subjected to 
the lien if he has no knowledge of the improvements. (37 Cal. 
61 and 81 Cal. 619. ) 

You will find these notices of completion sometimes 
signed by the contractor or omitting the date of completion 
or some essential statement required by the code. Such defects 
should be carefully noted as they may destroy the effect of the 
notice and it may be insufficient to shut out lien claims until 
90 days have run. They are often useful, however, in setting out 
the actual date of completion so that the 90-day limit may be 
determined. 



293 

COMPLETION DEFINED; 

Occupation or use of the improvement or structure by 
the owner or his representative. 

Acceptance by the owner or his agent. 
Cessation of labor for 30 days. 

Occupation by the owner accompanied by cessation of 
labor is equivalent to completion. This applies to a lessee 
or a vendee under contract of sale where they have ordered 
the improvements. 

ACTION TO ENFORCE LIEN: 



Any action must be commenced within 90 days after filing 
the lien, otherwise the claim as against the property is re- 
leased, or, if credit for an extended period has been given, 
then within 90 days after expiration of such period, but not 
longer than one year after work completed. The action must 
be brought to trial within two years after commencement, other- 
wise the case may be dismissed. 

NOTICE OF NON-RESPONSIBILITY: 

An owner may file such a notice under Sec. 1192, C. C. , 
within 10 days after acquiring knowledge of improvements being 
made by posting a notice on the property and by filing a veri- 
fied copy of the notice in the county recorder's office. This 
is usually done where the improvements are undertaken by a 
lessee or a person in possession under a contract of purchase. 

A recent case, 43 Cal. App. 718, related to a notice of 
non-responsibility which was not verified but was acknowledged 
and recorded and a copy served personally upon the lien claim- 
ant and posted upon the property. The court held the notice 
was insufficient and of no effect. Whether the notice is in 
substantial accord with Section 1187 "is a question of construc- 
tion and judicial judgment in each and every doubtful case". 

If a notice of completion is filed by one of several 
owners the interest of other owners cannot be subjected to the 
lien unless it can be shown that they had knowledge of the im- 
provement and had failed to file notice of non-responsibility, 
but if the notice of non-responsibility has not been filed by 
an owner having knowledge of the improvement, said improve- 
ments are presumed to have been done "at the instance of such 
owner". (80 Cal. 275 and 158 Cal. 328.) 

PRIORITY OF LIEN: 

Mechanics* liens take preference over any mortgage, 
lien or encumbrance which may have attached subsequent to the 
time when the work was commenced or materials were commenced 
to be furnished, or an encumbrance in existence but of which 



294 



the claimant had no notice or which was not recorded when such 
work was commenced. The claim of lien and the suit to enforce 
it will show the date of starting work or of furnishing 
materials, but not often the actual commencement of the improve- 
ment on the ground. 

Where there is no valid contract between owner and con- 
tractor, priority of lien between mechanic and mortgagee is 
to be determined "by the time the work was done or the materials 
commenced to be furnished". (131 Cal. 144 and 154 Cal. 249.) 

Mechanics' liens as between themselves take priority 
and require satisfaction as follows: 

1. Liens of persons performing manual labor. 

2. Liens of persons furnishing materials. 

3. Liens of sub-contractors. 

4. Liens of original contractors. 

FORM FOR POLICY: 



The following is a good form to use to protect a 
certificate or policy (to be adapted to the circumstances 

"Any liability by reason of claims of the 
contractor, mechanics or materialmen or 
those claiming thereunder that may be filed 
against said property in connection with 
improvements being constructed thereon 

(or within 60 days from the date 

of filing notice of completion on said 
improvements) . " 

SUMMARY FOR SEARCHER: 



If notice of completion is regular, then liens of 
material and labor claimants are barred 30 days after recorda- 
tion of the notice and the original contractor is barred after 
60 days. If there is a contract in evidence, the contractor 
may give a receipt for all money due thereunder and a waiver 
of all claims against the property and thus cut down the lien 
period to 30 days. If no notice of completion is filed, or if 
the recorded notice is not in compliance with the code re- 
quirements, lien claims may be filed against the property 
within 90 days from actual completion. 

If a mortgage or deed of trust is of record before any 
work is actually done or materials on the ground it ranks 
ahead of subsequent lien claimants, but not otherwise. This 
involves a question of fact not disclosed by the records. The 
priority of the liens is determined (131 Cal. 132, 144) by the 
date of recording the mortgage and the date of commencing the 
building where there is a valid contract, or by the date the 






. 



295 



work was done or materials commenced to be furnished where 
there is no valid contract. This rule has been followed 
since in many cases. 

Merely recording the mortgage in a building loan trans- 
action is not enough when the money is to be advanced as the 
work progresses. It must be a consummated loan and the money 
should be placed to the credit of the borrower in full and 
then held under an agreement to disburse it in installments. 
The test is that the whole loan must be obligatory and not 
optional or discretionary. Otherwise a lien might inter- 
vene between the amount actually advanced and the amount not 
put up by the lender. 



(End of Subject) 



300 



MORTGAGES 



DEFINED : 

A mortgage is a contract by which specific property is 
hypothecated for the performance of an act, without the neces- 
sity for a change of possession. (2920 C. C.) 

Any interest in real property that can be conveyed by 
deed may be mortgaged. 

A mortgage is a lien on, not an interest in, real prop- 
erty. The note is the principal feature and the mortgage is 
incidental to it, so that ownership of the note carries the 
mortgage with it. (2936 C. C. , 88 Cal. 319.) 

The note is the obligation creating the relationship 
of debtor and creditor, and it must be given for a good con- 
sideration. Such a note usually states on its face that it is 
secured by a mortgage (or a deed of trust), which makes it non- 
negotiable. By statutory amendment, notwithstanding any con- 
ditions in the instrument securing same (Stat. 1921, p. 471), 
such notes are now negotiable and pass from hand to hand im- 
mune from any defenses (such as want of consideration, fraud, 
offsets, counter-claims) that the original maker might set up. 



A mortgage need not describe the debt it secures. 
Pac. 751.) 



47 



The assignee of a negotiable note past due takes sub- 
ject to equities in favor of parties but not to latent equities 
of third party. (35 Cal. 91.) 

The assignee of a negotiable note without endorsement 
takes subject to equities. (126 Cal. 107.) 

MORTGAGE IN FORM OF DEED: 



Every transfer of an interest in property, other than 
in trust, made only as a security for the performance of another 
act, is to be deemed a mortgage, except when in the case of 
personal property it is accompanied by actual change of pos- 
session, in which case it is to be deemed a pledge. (2924 C. C.) 

A deed absolute on its face, but given as security for 
a debt or the performance of a condition, is treated in equity 
as a mortgage as between the parties to it and may be fore- 
closed as such, but this would not affect the rights of an in- 
nocent purchaser from the grantee meanwhile. 

When it is sought to declare a deed a mortgage, the 
mortgagor cannot demand foreclosure. His is an action to re- 
deem. If he redeems, the mortgageis satisfied. If not, his 



301 



action should be dismissed. (112 Cal. 581, 110 Cal. 107.) 

AFTER-ACQUIRED PROPERTY ; 

The mortgagor need not own the property he describes 
in his mortgage. Title he acquires subsequently inures to the 
mortgagee as security for the debt. The mortgage may cover 
after-acquired property by its own terms (27 Cyc. 1040), but in 
such a case a purchase money mortgage given back to the grantor 
of such after-acquired property would be a superior lien to 
the recorded mortgage. (85 Cal. 280.) 

POWER OF SALE: 



A power of sale may be given to the mortgagee, or to any 
other person, by the terms of the mortgage, to sell on default. 

CHATTEL MORTGAGES : 

A mortgage differs from a pledge in that the latter is 
accompanied by change of possession. (2924 C. C.) 

A chattel mortgage may cover all kinds of personal 
property except (2955 C. C.) — 

(a) Personal property not capable of manual 
delivery. 

(b) Wearing apparel and articles of personal 
adornment. 

(c) The stock in trade of a merchant. 

A chattel mortgage to be effective must carry an af- 
fidavit by all parties to it that it is made in good faith 
and without design to defraud creditors, otherwise it is void 
as to third persons, and it must be acknowledged and recorded. 
(2957 C. C. ) It must be recorded where the mortgagor resides, 
where the property is situated and in any county to which it is 
removed (a traveling band of sheep, for instance). It con- 
tinues on a crop after severance as long as it remains on the 
land of the mortgagor (as hay cut and baled). (112 Cal. 180.) 

Shares of stock are not capable of manual delivery and 
are not subject to be mortgaged under 2955 C. C. 

The certificate of good faith when made by a corpora- 
tion may read: 

STATE OF CALIFORNIA 
COUNTY OF 



J. Smith and W. Brown, being duly sworn, each 
for himself deposes and says that J. Smith is 



302 



president of Smith Co., a California cor- 
poration, the mortgagor in the foregoing 
mortgage, and that W. Brown is the secretary 
of said corporation; that the foregoing 
mortgage is made in good faith and without 
design to hinder, delay or defraud creditors. 

J. Smith 
W. Brown 

Subscribed and sworn to before me 
this day of 1920. 

(Notary signs and attaches seal) 

The affidavit of good faith may be made by the agent 
of a foreign corporation. (S. F. Breweries Co. vs. Schurtz, 
104 Cal. 420.) 

PURCHASE MONEY MORTGAGES: 



Should be recorded at the same time as the deed under 
which the mortgagor acquires title, to preserve priority. It 
may be given to the vendor or to a third person who advances 
the money for the purchase (27 Cyc . 1060), but in the latter 
case the mortgage should recite the facts to protect the 
mortgagee (2898 C. C, 120 Cal. 280). It must be one trans- 
action (85 Cal. 280). It is superior to a prior judgment, 
existing or subsequent liens against the mortgagor to the ex- 
tent of the land purchased and described (27 Cyc. 1180). 

ADDITIONAL ADVANCES ; 

A mortgage or deed of trust stating that it secures 
additional advances creates a lien for same as against sub- 
sequent owners or encumbrancers until actual notice of the 
junior encumbrance is imparted to the holder of the superior 
lien. 

The amount of such advance need not be stated. Per- 
sons interested are placed upon inquiry as to what has been 
advanced. (35 Cal. 302, 77 Cal. 386, 162 Cal. 300.) 

ERRONEOUS DATE: 

The date of a mortgage, if material at all, is material 
only as fixing the time for the payment of the debt secured. 

Post-dating the mortgage does not prevent its becoming 
operative immediately upon its delivery. It creates a present 
charge upon the property of which subsequent purchasers or en- 
cumbrancers are bound to take notice if the instrument is re- 
corded. (27 Cyc. 1077. ) 



303 



LIABILITY ON NOTE : 

A joint note is a note signed by more than one person, 
the liability is several and the full amount cannot be col- 
lected from one signer alone. A joint and several note can 
be collected from each or all, and any deficiency judgment 
docketed after foreclosure may be pursued against any of the 
signers. 

When a deed is made "subject to" an existing mortgage, 
the grantee is not personally responsible for the debt, altho 
the property may be lost by foreclosure. But if the grantee 
"assumes 11 the mortgage, he agrees to pay it, and a deficiency 
judgment can be had against him. 

Assumption of mortgage by purchaser of the mortgaged 
premises is a new promise to pay. (Daniel vs. Johnson, 61 Pac. 
1107.) 

ASSUMPTION BY GRANTEE : 

Is agreement to pay the mortgage which can only take 
place under contractual obligation. (167 Cal. 616, 90 Cal. 147; 
see, also, 120 Cal. 105.) 

MERGER : 

You will sometimes find property covered by a mortgage 
conveyed to the mortgagee. There is no presumption of a merger 
of the lien into the fee title. It is a question of intent 
(84 Cal. 295). If there are any rights to preserve, equity 
will keep the lien alive (85 Cal. 280, 121 Cal. 115). 

It is well to disclose the intention of the parties to 
the deed by a recital therein in some such words as follows: 

"This conveyance is made subject to a mortgage (de- 
scribe same) and shall in nowise be construed as a release or 
cancellation thereof or as a merger of the lien of said mort- 
gage with the title of the above described property. " 

The mortgage should be shown as an existing encumbrance 
in a certificate or policy. The same reasoning applies to a 
deed of trust. 

ACTUAL NOTICE OF MORTGAGEE ; 

It is not enough to ascertain the state of the mort- 
gagor's record title. Actual notice from inspection on the 
ground is necessary to cover possible rights of parties in 
possession under an unrecorded contract of purchase or pos- 
sibly a lease which may contain an option to purchase. Such 
parties could set up a defense on foreclosure or rest on their 
rights undisturbed by the holder of the mortgage. (118 Cal. 258, 
27 Cyc. 120.) A mortgagee must look beyond the records when he 
loans to ascertain facts as to possession. (99 Cal. 636.) 



304 

PENALTY FOR MISREPRESENTATION : 

A married person representing himself as competent to 
mortgage alone, when in fact the execution of the spouse is 
necessary, is guilty of felony on giving such mortgage. 

ASSIGNMENT, EXTENSIONS, RENEWALS. 

A mortgage can be created, renewed or extended only by 
a writing executed with the formalities required in the case of 
a grant of real property. (2922 C. C. , 85 Cal. 280, 65 Am. St. 
Rep. 179.) 

ASSIGNMENT; 

Of the debt secured by mortgage carries with it the se- 
curity. (2936 C. C, 88 Cal. 319, 65 Cal. 217, 117 Cal. 412.) 

The assignment need not be recorded and the mortgage 
need not be delivered. (109 Cal. 42.) 

EXTENSION; 

Is a broadening of the security to cover additional 
advances. (Sec. 2922, C. C. ; 120 Cal. 223.) 

RENEWAL ; 

Refers to prolongation of the original contract. It 
must be in writing, signed by the party to be charged, and sup- 
ported by a new and good consideration (40 Cal. 117, 131 Cal. 
316). If the time extends beyond date of outlawry, or if burden 
of lien is increased, subsequent encumbrancers must join to 
be bound (43 Cal. 185). Sec. 2922, C. C. , applies only after debt 
has outlawed. (85 Cal. 280, 120 Cal. 414.) An acknowledgment 
or promise made before the statute has run vitalizes the old 
debt for another period ; after the statute has run it gives 
a new cause of action for which the old debt is a considera- 
tion (56 Cal. 342). 

NOVATION; 



Acceptance of a new note and mortgage as renewal of 
former note and mortgage does not extinguish the latter in ab- 
sence of evidence that new papers are given to satisfy old ones, 
(144 Cal. 104.) 

But this is always a question of intent which a title 
company cannot determine or anticipate the finding of the 
court in any action by the parties to enforce their respective 
liens. (68 Pac. 484. ) 

EXTENSION AND OUTLAWRY: 



Unrecorded extension maintains lien of mortgage as 



305 



superior to second encumbrancer who on foreclosure of mortgage 
pleads statute of limitations. Facts govern, not records. 
Third person acquiring lien or interest must enquire if in 
fact first mortgage has been extended. (134 Cal. 269, Newhall 
vs. Hatch, also 126 Cal. 198 and 140 Cal. 29.) 

In the Newhall case, Hatch mortgaged to Newhall, 
mortgage was extended within 4 years from due date and was 
foreclosed after original 4 years had run, but within 4 years 
of due date under extension. Owner of judgment which at- 
tached in lifetime of original mortgage pleaded statute and 
no knowledge of extension, which was unrecorded. Supreme Court 
held that it was duty of judgment owner to have ascertained 
from mortgagee whether the note had been extended in fact. 

SUBORDINATION AGREEMENT : 

Is not constructive notice of its contents because it 
is not an instrument affecting title to real property. (28 N. Y. 
191, 104 Cal. 130, 5 Cal. 334.) It is a good plan to indorse 
the subordination on the note itself. (See Jones on Mortgages, 
608, and Jones on Real Property, 1588.) 

OUTLAWED MORTGAGE ; 

On the authority of 140 Cal. 29, an outlawed mortgage 
may be omitted if the title has passed, otherwise such a 
mortgage should be noted after the description. 

A mortgage outlaws four years after its due date. 

Unconditional admission of the debt after statute has 
run extends the lien. (11 Cal. App. 523, Cal. College vs. 
Stephens. ) 

DEFICIENCY JUDGMENT WAIVER : 

Use this form in the mortgage: 

"It is understood that this mortgage is the sole 
security for the promissory note set forth here- 
in and that therefore said mortgage specifically 
waives any deficiency on account of the failure 
of the security to discharge the whole debt due 
or to become due." 

FORM USED IN MORTGAGE WHEN NOTE IS SECURED ALSO BY DEED OF TRUST; 

SAID NOTE is also secured by a certain deed of trust 
to , a corporation, of even date herewith, 

and it is hereby agreed that in case of default under said 
note, the holders thereof may, at their sole option, and with- 
out limiting or affecting any rights or remedies conferred 
upon them by this mortgage or said deed of trust, foreclose 
this mortgage, or exercise any of the rights and remedies con- 



306 



f erred upon them under said deed of trust, either concurrently, 
or in such order as they may determine, and may sell or cause 
to be sold, in such order as they may determine, as a whole, 
or in such parcels as they may determine, the property de- 
scribed in this mortgage and/or in said deed of trust. 

MORTGAGE BY ADMINISTRATOR WITHOUT ORDER OF COURT: 

Is no part of his duty. Heirs could repudiate it on 
distribution, but mortgage would belong to administrator indi- 
vidually. (36 Cal. 188.) 

ON WIFE'S PROPERTY : 

To secure husband's debt. Is good, as married woman 
has free right of contract. (55 Cal. 15, 139 Cal. 246.) 

GROWING CROPS ; 

The case of Simpson vs. Ferguson (112 Cal. 180) ruled 
that a mortgage upon the land is limited in its effect, so far 
as growing crops are concerned, to crops growing upon the land 
at the time of foreclosure and does not vest in the mortgagee 
a right to the crop grown between the giving of the mortgage 
and its foreclosure, but the mortgagor is entitled to such 
crop and may exercise an absolute dominion over them as if 
the mortgage did not exist. 

The above decision appears to be reversed in the case 
of Penryn Co. vs. Sherman-Worrell Co. (142 Cal. 643.) 

Growing crops unsevered are a part of the realty and 
pass to the purchaser under a trust deed foreclosure and sale, 
the purchaser taking as of the date of the trust deed, but as 
regards growing crops he must make entry and take possession 
to defeat the right of a chattel mortgage under mortgage sub- 
sequent to date of trust deed. 

MORTGAGE ON INTEREST OF MINORS ; 

Such a mortgage must be supported by an order of court, 

A minor's interest when mortgaged with other interests 
must be segregated. 

In the case of Howard vs. Bryan (133 Cal. 257) a mort- 
gage given by widow, owner of one-half, and ten minor children 
owning one-twentieth, each, for one aggregate sum, rendering 
each minor liable for the whole debt, was held invalid. 

Judge Henshaw said "either separate mortgages must be 
ordered, or the mortgage must specify the amount of the lien 
and charge against the interest of each minor, and provide for 
the discharge of the lien as to each particular ward's prop- 
erty upon the payment of that amount." 






. 



307 



The mortgage should embody a clause along the following 
lines where several minors join: 

"The mortgagee, by acceptance hereof, agrees 
that no one of the interests of said minors 
shall be held liable for said indebtedness 
beyond (one-third) thereof and the personal 
liability of any of said minors shall not ex- 
tend beyond (one-third) of said indebtedness." 

Where an adult and a minor join, adopt this form: 

"The mortgagee, by the acceptance hereof, agrees 

that is the owner of an undivided 

interest in the property hereinafter described 
and that the amount of the lien of this mort- 
gage against the interest of said 

is of the entire indebtedness herein 

set forth. It is further agreed that said 

shall be entitled to and the 

mortgagee will execute a full discharge of said 
interest from the lien of this mort- 
gage upon payment of his proportionate amount of 
said indebtedness." 

A more elaborate recital is as follows: 

"This mortgage and note herein described are made 

and delivered by , as guardian of 

the estate of , a minor, in pur- 
suance of an order entered on the day of 

19 , in Case No. of the Superior Court of 

the State of California, in and for the County 

of , a certified copy of which order 

is recorded simultaneously herewith in the 
office of the County Recorder of said County, 
which said order directs that a mortgage shall 

be made for the sum of $ payable 

years from the date thereof, with interest at 

per cent, payable , covering the 

interest of said minor, to-wit: An undivided 

in the property hereinabove described, 

and the mortgagee, by the acceptance hereof, 
agrees that the interest of said minor in said 
property shall not be held liable for the total 
indebtedness herein set out beyond the sum of 

$ thereof, and the personal liability 

of said hereunder minor shall not extend beyond 
of said indebtedness." 

MORTGAGE JOINED IN BY INCOMPETENT: 



Insert in mortgage a recital in this form: 



308 



"As to the interest of in said 

property, this mortgage is made and delivered 
by virtue of an order out of the Superior Court 

of said County of date entered in the 

matter of the estate and guardianship of said 

, an incompetent person, authorizing 

the execution thereof and the mortgagee agrees 
in accepting this mortgage that the personal 
liability of said incompetent upon said note 
and her liability on account of said mortgage 
shall be limited to her interest in the said 
property. ■ 

GUARANTOR ; 

The obligation of a guarantor of a promissory note is 
an independent contract on which holder of note may recover 
judgment without first exhausting the security. 

Guarantor would naturally be subrogated to rights of 
mortgagee securing the note and could foreclose. (5 C. D. 383 
of Oct. 14, 1918.) (See, also, 133 Cal. 574, 128 Cal. 464, 
119 Cal. 67, 120 Cal. 688.) 

GUARANTEE OF NOTE: 

The guarantor should sign both above and below the 
following form on back of the note : 

"I hereby guarantee payment of the within note, 
or any renewals or extensions thereof, and all 
expense of collection thereof, and all expense 
incurred in enforcing this guaranty, and waive 
demand, presentment for payment, protest and 
notice of protest, and consent that the time 
for payment may be extended from time to time 
without notice to me." 

RELEASE AND SATISFACTION: 



Full performance of an obligation by the party whose 
duty it is to perform it, or by any other person on his behalf, 
and with his assent, if accepted by the creditor, extinguishes 
it. (1473 C. C.) 

An obligation in favor of several persons is extin- 
guished by performance rendered to any of them, except in the 
case of a deposit made by owners in common, or in joint owner- 
ship, which is regulated by the title on deposit. (1475 C. C, 
96 Cal. 275, 76 Cal. 465. ) 

One who holds a mortgage by assignment as collateral 
security for a sum smaller than the mortgage debt may receive 
payment, or may compel payment by foreclosure; and holding the 



309 



mortgage title, of record he may give a valid discharge. If 
he collects a sum more than sufficient to pay the debt due him, 
he will hold the surplus in trust for his assignor. (Jones on 
Mtgs., 7th Ed., par. 963.) 

Lapse of time within which action can be brought ex- 
tinguishes the lien. (2911 C. C. ) 

RELEASE BY GUARDIAN: 



Ward held mortgage on land of guardian, who released 
same without charging same in his account and without order 
of court. Mortgage remains a lien. (30 C. A. D. 408, 726.) An 
order of court authorizing or approving such a release should 
be obtained. (55 Cal. 81, 104 Cal . 156, 25 C. D. 502.) 

In the absence of a provision in a mortgage for partial 
release upon the payment of specified sums, no partial release 
by an executor, administrator, or guardian should be passed. 

When there are two or more executors or administrators 
a release by less than all of them unless they come within the 
provision of Sees. 1355 and 1425, C. C. P., should not be passed. 

REFUSAL TO RELEASE: 



A penalty of $100 is imposed on the mortgagee for fail- 
ing to satisfy the mortgage after payment tendered or to give 
a satisfaction for record. The tender can be made by deposit- 
ing it in a bank. (1500 C. C. , 35 Cal. App. 325.) 

RELEASE BY FOREIGN ADMINISTRATOR: 



follows : 



Sec. 2939*2, C. C. (Stat. 1913, p. 216), provides as 



"Foreign executors, administrators and guardians 
may satisfy mortgages upon the records of any 
county in this State, upon producing and re- 
cording in the office of the county recorder 
of the county in which such mortgage is re- 
corded, a duly certified and authenticated 
copy of their letters testamentary, or of 
administration or of guardianship, and which 
certificate or authentication shall also 
recite that said letters have not been revoked." 

No such presumption of regularity of probate proceed- 
ings obtains as between counties within the State and there- 
fore the proper appointment of the person releasing in his 
official capacity should be verified by report from the county 
in which proceedings were had. 



510 



FORECLOSUR E 

ONLY ONE ACTION; 

There can be but one action for the recovery of the 
debt, or the enforcement of any right secured by mortgage upon 
real or personal property, which action must be in accordance 
with the Code of Civil Procedure. 

The action does not quiet title, but affects only such 
interest as is actually covered by the mortgage. A purchaser 
with sheriff's deed acquires only such title as the mortgagor 
had and mortgaged. The decree of foreclosure is good only 
against those persons properly served and before the court. 

If husband mortgages alone and homestead is declared, 
the wife must be a party defendant . 

No levy need be made on foreclosure sale. (94 Cal. 224.) 

CROP MORTGAGEE AS DEFENDANT: 



Has no rights of redemption as he has no interest in 
or lien on the land itself and need not be sued. He is a 
proper party defendant if his mortgage is a junior lien, be- 
cause the mortgage being foreclosed may cover crops at time 
of suit. 

JUNIOR ENCUMBRANCERS: 



A junior mortgagee may set up his mortgage in fore- 
closure of senior mortgage and have surplus applied to his 
debt without losing right to foreclose as to other lands. 
(121 Cal. 294.) 

The trustee under a deed of trust is a necessary party 
defendant and the beneficiary a proper but not a necessary 
party. (91 Cal. 492, 167 Cal. 459, 135 Pac. 719.) In case of a 
trust deed securing a bond issue, the trustee represents the 
many holders of the securities when served in his trust capa- 
city. (See R. C. L. 532 as to necessary parties.) The trustee 
and the payee shown by the records are the only necessary 
parties to be sued under 726 C. C. P. and the real owner of the 
note undisclosed of record need not be sued. (Worden vs. 
S. Pass Realty Co., 56 Cal. Dec. 1.) 

Where a mortgage is foreclosed and the trustee under 
junior trust deed made party defendant in individual capacity 
only, decree of foreclosure does not affect integrity of trust 
deed or foreclosure trustee's right of redemption. (139 Pac. 
551, 123 Pac. 139, 127 Pac. 139.) But if the payee is before 
the court, it is safe to pass the omission. (18 Cal. App. 642, 
42 Cal. 439. ) 



311 



The best practice is to sue the trustee and the record 
payee of the note. 

Where foreclosure is decreed with a junior encumbrancer 
not sued a separate action may be brought by the owner of the 
sheriff's certificate to adjudicate his rights, provided the 
first mortgage is not already outlawed. 

As to a junior trust deed not before the court see 
Watkins vs. Perry, 25 Colo. App. 425, 139 Pac. 551. 

As to a mortgage, see 175 Cal. 741, 144 Cal. 246. 

FORECLOSURE AFTER STATUTE HAS RUN: 

May be maintained if mortgagee makes written acknowl- 
edgment of debt. (Catcher vs. Barton, 33 C. A. D. 141.) 

NO RECEIVER ALLOWED : 

Receiver cannot be appointed under stipulation in the 
mortgage (115 Cal. 94, 62 Pac. 100) nor during time allowed 
for redemption (144 Cal. 659). 

DEFICIENCY JUDGMENT REDEMPTION; 

Before adoption of codes such judgment was no lien on 
the property sold (Stat. 1859, p. 139). Thereafter the Supreme 
Court in Simpson vs. Castle (52 Cal. 647) rendered a decision 
that has been since followed that where the mortgagee purchases 
for less than the judgment and deficiency judgment is docketed, 
a purchaser from the mortgagor is entitled to redeem clear of 
the deficiency; the judgment owner is not "a creditor having 
a lien" as to the unsatisfied portion of the judgment against 
the property sold. (See, also, Lantz vs. Fishburn, 120 Pac. 1068.) 

Judgment creditor holding deficiency judgment may 
have execution issue at once on other property of debtor. 
(16 Cal. 403 at p. 421. ) 

TITLE AFTER FORECLOSURE: 



The above case also held that during the redemption 
period legal title remains in the mortgagor, but later cases 
hold that the purchaser takes title with the condition that 
he may be divested by redemption. The sheriff's deed creates 
no new title, but is evidence that the title acquired at pur- 
chase has become perfect. The right of redemption is created 
by the statute. (102 Cal. 680, 116 Cal. 230.) 

Purchaser acquired a conditional estate subject to be 
defeated by redemption and takes entire beneficial title ex- 
cept possession. It can be seized on attachment before or 
after redemption or deed. After redemption period, debtor 



312 



holds legal title in trust for vendee. (31 Cal. 294, Page 
vs. Rogers.) 

After foreclosure, debtor has only personal right to 
occupy and right to redeem and his interest is not subject to 
execution on a judgment against him docketed after foreclosure. 
No case found in California, but in Montana, under similar 
statutes, case so decided in Hamilton vs. Hamilton (154 Pac. 
717). (See, also, 138 Cal. 390.) 

Purchaser acquires all interest of judgment debtor 
(700 C. C. P.). The deed is taken as though executed at date 
when the lien of which it is the sequence originated (75 
Cal. 552). The sale invests purchaser with title of mortgagor 
at date of the mortgage (93 Cal. 600). 

The equity of redemption exists until sale, after which 
debtor has a "right to redeem" if given by statute. (158 Pac. 
953.) 

The equity of redemption cannot be waived, but can be 
subsequently conveyed to purchaser on fair terms. (114 Cal. 593.) 

After foreclosure the mortgagor may remain in pos- 
session until his statutory time for redemption has expired. 
(114 Cal. 422.) 

Rents on foreclosure are payable to purchaser. (707 
C. C. P.) 

Sheriff's deed issued before redemption period ex- 
pires is void. (44 Cal. 332, 61 Cal. 331.) 

A deficiency judgment cannot be obtained until sale 
is made. (140 Cal. 80.) 

REDEMPTION 

Prior to February 26, 1897, the period allowed for 
redemption was six months. After that date it was twelve 
months. 

Taking assignment of sheriff's certificate of sale by 
judgment debtor redeems sale. (13 Cal. 79.) 

Filing notice of money deposited in bank for redemp- 
tion on refusal of commissioner to accept same, held good 
against those claiming under the commissioner's deed. 
(Mitchell vs. Price, 34 Cal. App. 356.) 

By stranger, terminates sale. Sheriff's deed later of 
no legal effect (134 Cal. 33) and legal title vests in redemp- 
tion. If original debtor redeems after having deeded out, 
title vests in debtor's grantee under 703 C. C. P. (See 154 
Pac. 714, a Montana case.) 



313 



When right to foreclose junior mortgage is barred, the 
co-relative right to redeem is lost. (95 Cal. 184, 8 Cal. App. 
160, 116 Cal. 255. ) 

Junior mortgagee on cross -complaint and included in 
judgment is not a redemptioner. (124 Cal. 518.) 

All property must be redeemed or none (55 Cal. 534). 
No redemption can be made as to a part of the premises (149 
Cal. 627). 

Redemption by one of several owners terminates sale 
but gives equitable lien against other co-tenants. (138 Cal. 
651, 131 Cal. 667.) 

"Judgment debtor" includes his successor in interest. 
(113 Cal. 552, 138 Cal. 390.) 

Redemption by debtor terminates sale and certificate 
of redemption must be given to him. (66 Cal. 117, Calkins vs. 
Steinbach. ) 

Successor in interest of judgment debtor is not a re- 
demptioner as defined in the statute, but stands in place of 
debtor and is included by the statutory words "judgment debtor" 
(113 Cal. 552, Phillips vs. Hagart ) . See Oregon case Hiffs vs. 
McDuffie (158 Pac. 953) on redemption in general under similar 
statute to ours. 

REDEMPTION BY LESSEE: 

Lessee under lease made subsequent to mortgage is 
necessary party to foreclosure and has right to redeem (Sulli- 
van vs. Superior Court, 61 Cal. Dec. 253 of 2-16-21). This 
overcomes the rule in McDermott vs. Burke, 16 Cal. 580, to the 
contrary. 

Where portion of land leased after mortgage, on fore- 
closure lessee entitled to ask that unleased portion be first 
sold and is entitled to redeem. (Mack vs. Shafer, 135 Cal. 113.) 

MORTGAGE WITH POWER OF SALE : 

At sale, if holder of debt buys, mortgagor has right 
of redemption, otherwise not. 

REDEMPTION: 



Redemption by holder of certificate of sale under a 
junior encumbrance. He redeems as successor in interest if 
he is entitled to a deed and effect of sale is terminated. 
(Pollard vs. Harlow, 138 Cal. 391. ) But if he redeems before 
he has both the legal and equitable title under his junior 
sale and certificate he redeems as a junior encumbrancer and 



314 



adverse to original judgment debtor and sheriff's deed to him 
under original sale will carry new title adverse to original 
debtor. If year had elapsed after junior sale, the right to 
a deed thereunder became absolute and the debt on original 
foreclosure gives no new title. (Duff vs. Randall, 116 Cal. 
228.) 

Judgment docketed against the debtor both before and 
after sale on foreclosure. Debtor then deeds to "A", who re- 
deems. "A" takes subject to both judgments. (116 Pac. 504, 
51 Pac. 147, 64 Pac. 795, 9 Cal. 413, 14 Iowa 124, 81 Am. 
Dec. 460.) 

Owner mortgages, then gives a trust deed. Mortgage is 
foreclosed and sale made. Then trust deed is foreclosed with 
deed by trustee. Held that trustee's grantee is successor in 
interest to mortgagor for redemption only. While redemption 
by successor is restoration to original estate, the rule does 
not apply to purchaser under trustee's deed because purchaser 
becomes owner of the certificate of sale subject to redemp- 
tion within the year by debtor (7 Cal. App. 738). Judgment 
creditors against owner subsequent to trust deed are still 
redemptioners. See, also, 154 Cal. 513 (9 Cal. 365 before 
codes), 116 Cal. 226, 156 Pac. 45. 

ASSIGNMENT OF SALE CERTIFICATE BY DEED: 

A quitclaim deed executed by the purchaser at sheriff's 
sale, after redemption period had expired and prior to issuance 
of sheriff's deed, is equivalent to an assignment of the cer- 
tificate of sale, so that when the sheriff issues his deed 
thereafter to the purchaser, the quitclaim deed will be good 
as between the parties. (Ward vs.Doughery, 75 Cal. 240, 17 
Pac. 193.) 

FUTURE SUBORDINATION: 

Only case directly in point found is McCaslin vs. 
Advance Mfg. Co., 155 Ind. 298 (58 N. E. 67 in 1900), holding 
that mortgage subsequently recorded was superior to mortgage 
already recorded because of covenant in the latter allowing 
a new mortgage to be a prior lien. See 1559 C. C. as to 
enforcement of covenant. 

REDEMPTION BY JUDGMENT CREDITOR, D EBTOR DECEASED : 

A judgment creditor does not lose his right to redeem 
as a junior encumbrancer upon foreclosure when the defendant 
in the action, being his debtor, is deceased. 

BONDS NEGOTIABLE: 

When payable to bearer or holder notwithstanding any con- 
ditions in instrument securing the same. (Stat. 1921, p. 471.) 



315 



MORTGAGE TO P ARTNERSHIP: 

Mortgage to Reliance Building Co. unincorporated. Cer- 
tificate of fictitious firm name filed by D. and B. Mortgage 
was assigned by Reliance Building Co. by D. , President, ac- 
knowledged by D. as individual. Mortgage is good (27 Cyc. 1085, 
187 Pac. 831). A mortgage is not a conveyance which would have 
been void, but a lien like a mechanics' lien or a judgment and 
its record gives notice. (101 Cal . 438.) In 32 Cal. 639 mort- 
gage not binding at law was held good as equitable lien. (126 
Cal. 467.) 

LOANS BY NA TIONAL BANKS ; 

Prior to 1913 has no power to loan on real property 
(5136/7 Fed. Stat. Ann.). Mortgage not void and Government only 
could object (191 U. S. 451, 122 Cal. 167). Federal Reserve 
Banking Act of 1913 allows loans on farm lands up to 50% 
valuation. In 1914 Sec. 24 of said act was amended to allow 
loans within 100 miles for one year up to 25% of bank's capi- 
tal and surplus and 50% of the value of the property. 

REDEMPTION: 

A judgment debtor can redeem from an execution sale 
notwithstanding his deed to a third party. (51 Cal. 539, Yoakum 
vs. Bower.) See, also, 105 Cal. 99. 

REDEMPTION: 

Successor in interest to judgment debtor can redeem 
without paying deficiency judgment. He must be a bona fide 
purchaser. (Simpson vs. Castle, 52 Cal. 647.) 

REDEMPTION: 

Creditor docketing judgment against "A" after property 
of "A" was sold on execution is a redemptioner. (Stetson vs. 
Sheehan, 200 Pac. 387.) The debtor retains sufficient interest 
during redemption period. 

USURY: 

The present usury law was an Initiative Act voted on 
November 5, 1918, in effect December 10, 1918. The legal 
rate of interest is seven per cent , but interest may be charged 
"not exceeding $12.00 on $100.00 for one year or for a longer 
or shorter time". No greater interest than twelve per cent 
for one year can be charged directly or indirectly and on 
violation no action can be maintained to recover any interest 
and the debt cannot be declared due until full contract period 
has elapsed. Commission is limited to five per cent on 
$1,000.00 or less amount actually loaned and three per cent 
on sums over $1,000.00 in full for examinations, views, fees, 



316 



appraisals and commissions and for all charges, except ab- 
stracts or certificates of title. 

USURY LAW UPHELD : 

In Blodgett vs. Rheinschild, 37 Cal. App. Dec. 556, on 
March 6, 1922, the court upheld the law of 1918, the commis- 
sion charged by lender being added to interest of 1% per month. 
Lender could collect only original principal when due and 
damages for unlawful replevin of an auto. 



(End of Subject) 






320 



POWER OF ATTORNEY 



DEFINED ; 

A power of attorney is an authority given by a person 
usually called the principal to another called the agent or 
attorney-in-fact to transact business for him in accordance 
with the scope of the instrument, to the terms of which the 
power of the agent is strictly limited. In constructing the 
instrument, which must be in writing, the authority is not to 
be extended beyond that which is given in express terms or 
necessary to convey into effect that which is expressly given. 
(2 Corp. Juris 556. ) 

Care should be exercised to determine that the power 
authorizes the specific act done by the attorney-in-fact, for 
"when an authority is given partly in general and partly in 
specific terms, the general authority gives no higher powers 
than those specifically mentioned" (2321 C. C). The exact 
words in the power relied on for the authorization of the act 
done by the attorney-in-fact should be set forth by the searcher 
in his abstract. 

PROHIBITED ACTS: 

An attorney-in-fact cannot: 

Make a gift of his principal's property. 
Convey, mortgage or release except for a 

valuable consideration. 
Convey or mortgage homestead property. 
Deal with principal's property for his own benefit. 
Release or assign a mortgage made by himself to 

his principal. 
Convey his principal's property to himself or to 

any other person, for his own benefit. 
Mortgage his principal's property to himself or to 

any other person for his own benefit. 
Make a partition. 

A conveyance under a power of attorney should show the 
true consideration on its face. The usual recital of "$1.00" 
is not enough to make a prima facie showing of adequate value 
received. 

Power to sell and convey does not authorize an exchange 
(134 Cal. 643), but authority to buy and sell on any terms the 
agent may see fit would be sufficient. 

Power to sell is not power to convey (76 Cal. 616). 

TERMINATION OF POWER: 



Death of principal terminates the agency at common law. 
(Long vs. Thayer, 150 U. S. 522; 37 Law. Ed. 1167; 41 L. R. A. 



321 



661.) This is for the reason that on a man's death, title to 
his property passes at once to his heirs. 

This rule is modified by our C. C. 2356, which provides 
for termination as to every person having notice thereof by 

(a) Revocation by principal. 

(b) His death. 

(c) His incapacity to contract. 

This does not apply to a power of attorney coupled 
with an "interest" which is seldom used. 

GENERAL AGENCY: 



A general or universal agency is lawful, but is rarely 
found. It is usually very short and empowers the attorney- 
in-fact to perform any act on behalf of the principal and in 
his name which he can or could do and which can be done for 
him by another. See 2297 and 2304 C. C. (31 Cyc . 1340, 42 Am. 
Dec. 612, 97 Am. Dec. 728.) 

POWERS BY MARRIED WOMEN: 

Prior to April 3, 1863, a married woman could not make 
a power of attorney. By an act of that date she was author- 
ized to make a power of attorney provided her husband joined 
with her in it. (Stat. 1863, p. 165.) The act referred to vali- 
dated all powers of attorney previously made, \t duly executed 
by the husband and wife. 

Since January 1, 1873, a married woman can execute a 
power of attorney without her husband joining therein. 
(2996 C. C.) 

JOINT POWERS : 

A power of attorney may be joint or it may be several 
or it may be joint and several. It has been held that a power 
of attorney given to two or more persons gives no authority to 
deal with the joint property of the principals unless the 
power so expressly provides, except the makers be husband and 
wife. (50 Cal. 77.) However, under a recent decision of our 
Supreme Court (Cousino vs. Eastern Shore Lumber Company, 56 
C. D., p. 284) an attorney-in-fact appointed under a joint 
power has ample and complete authority to convey or encumber 
any interest held by any of the principals, notwithstanding 
the fact that the power of attorney does not in terms so 
provide. 

See "Husband and Wife" as to the effect of Sec. 172a, 
C. C. , on deeds made under a power of attorney. 

This applies to community property acquired prior to the 
adoption of Sec. 172a, C. C. , on July 27, 1917, which calls 



322 



for joint execution by husband and wife, and in the construc- 
tion of which the analogy of the homestead code provisions 
has been held to apply. Personal execution by both spouses 
should be required since July 27, 1917. 

A power to several attorneys-in-fact with full power 
of substitution does not authorize one of them to act ; if an 
attorney-in-fact under such power substitutes another in his 
place, such substitution probably renders the original attor- 
ney's power nugatory and prevents him from acting further, 
and a revocation of the substitution would not reinstate him. 

POWERS OVER SEVEN YEARS OLD: 

It is not safe to pass a power of attorney over seven 
years old without inquiring as to whether the donor is alive. 
There may be a presumption that he is dead. The existence of 
the donor should be ascertained dehors the record. 



(End of Subject) 



330 



STAMPS 



Documentary stamps are required under the Federal 
Revenue Acts as hereinafter set out. 

The Emergency Revenue Act, effective December 1, 
1914, to December 1, 1915, continued in force until September 
8, 1916. The United States Revenue Act of October 3, 1917, 
was effective November 1, 1917, but as to stamps from Decem- 
ber 1, 1917. 

The Stamp Tax is computed on the following schedule: 

On promissory notes and renewals or extensions 

of same per $100.00 or fraction thereof $0.02 

(See amendment in effect July 1, 1924.) 

On every deed or instrument in writing, grant- 
ing, assigning, transferring, or conveying 
realty or an interest therein, when the 
consideration for the property conveyed, 
exclusive of liens or incumbrances, ex- 
ceeds $100.00 and does not exceed $500.00... $0.50 

For each additional $500 or fraction thereof... $0.50 

On powers of attorney $0.25 

On proxies $0.10 

On bonds, debentures or certificates of in- 
debtedness except those issued by Federal, 
State or Municipal Corporations exercising 
the taxing power, on each $100.00 $0.05 

On surety or indemnity bonds $0. 50 

On original issue of stock of a corporation 

per $100.00 face value $0.05 

On reissue, transfer or agreement of sale 

per $100.00 face value $0.02 

Stocks and bonds of cooperative building and loan asso- 
ciations and of mutual ditch or irrigating companies are exempt. 

On sale of stock: 

(a) Where sale is shown only by books of corporation, 
stamps must be placed on the books. 

(b) On transfer and reissuance, stamp original 
certificate. 



331 



a debt. 



(c) When transfer is by delivery of certificate 
assigned in blank, a bill must be delivered 
by seller to buyer showing details of stock 
and stamps must be affixed to this. 

No tax is imposed on any instrument given to secure 



Gift deeds, deeds making partition, and bills of sale 
require no stamps. 

Insurance policies require stamps, one-half of 1% of 
the premium charged. 

CITY DEED; 

Exempt from tax under Sec. 1101, Title XI, Act of 1918, 
which provides that bond, note or other instrument issued by 
any municipal corporation exercising the taxing power shall 
not be taxed. 

MORTGAGE NOTES EXEMPT ; 

No stamps required on notes after July 1, 1924. 



RULINGS AND REGULATIONS 

The Commissioner of Internal Revenue, with the approval 
of the Secretary of the Treasury, is empowered to prescribe 
regulations for the enforcement of the Act. The Treasury De- 
partment at Washington issues its rulings from time to time 
as to the application and requirements of the same. Among 
these Treasury Decisions the following affect the title man: 

POSTAGE STAMPS NOT SUFFICIENT; 

Documentary stamps must be used in all cases. Postage 
stamps are useless. 

CONTRACT OF SALE: 



Needs no stamps. The deed when delivered must be 
stamped to the full amount of the consideration. 

STOCKS OF A DECEDENT: 



Stocks transferred from decedent to administrator take 
no stamps, but transfer from administrator to the heirs must be 
stamped as per schedule. 

POWER OF ATTORNEY: 

Must be stamped when the power is accepted, not when 
it is exercised. 



333 



the old mortgage is released and a new mortgage given, the ex- 
tension agreement should be stamped at 20 per hundred until the 
amendment in effect July 1, 1924, exempting such notes. 

VENDOR ' S LIEN: 

Under decision of Jan. 11, 1915 (T. D. 2123) the amount 
of a vendor's lien retained in a deed may be deducted from the 
purchase price for computing stampable value, and unless the 
purchase money mortgage or lien is evidenced in the deed as being 
part of the consideration, the same cannot be deducted. 

DEDUCTION OF ENCUMBRANCES: 



In determining the amount of encumbrance upon real es- 
tate being transferred, no consideration is to be given to new 
encumbrances placed upon the same at the time of or after the 
sale. "Only encumbrances which rest on the property before the 
sale and which are not removed by the sale are to be taken 
into consideration." (T. D. 2599 of Dec. 3, 1917.) 

RECORDED INSTRUMENTS, INSUFFICIENT STAMPING: 

This defect may be readily corrected. The original 
document must be presented to the county recorder and the neces- 
sary additional stamps affixed and canceled. The recorder will 
then make an entry upon the record of the instrument showing 
that such additional stamps have been attached since the origi- 
nal filing. The Collector of Internal Revenue advises that the 
proper amount of stamps should be purchased by the grantor and 
delivered to the grantee to be attached to the deed or other 
paper and unless the transaction appears upon the public records 
his office should be notified. Where the above method is im- 
practicable the instrument with the additional stamps may be 
rerecorded with a notation attached in explanation. 

FEDERAL FARM LOAN MORTGAGES: 



These are exempt under Sections 2 and 26 of the Federal 
Farm Loan Act of July 27, 1916. 

RECORDING DEEDS WITHOUT STAMPS : 

It is not considered good practice to state on a deed 
filed for record "The consideration for this deed does not ex- 
ceed $100.00", except in special cases such as with quitclaim 
deeds given to correct errors in previous conveyances. Such a 
recital might cast doubt upon the validity of the transfer of 
valuable property when transcribed on the records. A pencil 
memorandum to the recorder is sufficient. 

A Washington decision under the Revenue Act advises: 
"It is not the duty of the county recorder to insist on the 
proper amount of stamps being attached. If he is not satisfied, 
it is his duty to notify the Collector of Internal Revenue, and 
he can demand an affidavit showing the true consideration." 



(End of Subject) 



340 



TAXES AND ASSESSMENTS 

The first encumbrance shown in a guarantee is that of 
taxes. These were formerly divided into two heads, State and 
county taxes, and city taxes. At the general election of 
November, 1910 (Amendment No. 1), the State Constitution was 
changed to permit of the segregation of State and local taxa- 
tion, the State drawing revenue principally from a percentage 
of the gross receipts of public utility corporations, insur- 
ance companies and banks, and by assessment of the franchises 
of all other corporations organized for profit. The first 
Corporation Franchise Tax Act was passed in 1911 and has been 
amended several times since. We therefore have to consider 
three sorts of taxes in writing a certificate or policy: 
State, county and city. 

The State taxes only concern us when the property was 
owned by a corporation on the first Monday in March of any 
year when the franchise tax attaches and on the first day of 
January of any year because since January 1, 1918, the license 
tax has been a lien on all property owned by a corporation 
on said date. 

CORPORATION TAXES: 

Public service corporations are taxed on all their 
possessions (except non-operative property) for State pur- 
poses alone. Other corporations pay taxes to the State on 
their franchises only, and on their other property to county 
and city as formerly. 

CORPORATION FRANCHISE ACT: 



Original Act passed in 1911 (Stat. 1911, p. 530), and 
amended each session since, levies a tax on franchises which 
include the right to be a corporation and to do business. The 
tax is payable to the State Treasurer in two installments: The 
first half on the first Monday in July (delinquent six Mondays 
later with 15% penalty added) and the second half up to the 
first Monday in February (after which 5% penalty attaches to 
all unpaid amounts). The lien created has the effect of an 
execution duly levied and is not removed until taxes and penal- 
ties are paid or the property is sold to make the amount due. 
While the tax attaches the first Monday in March, it covers 
the fiscal year from July 1 to the following June 30. 

If taxes remained unpaid, as the act stood until the 
amendment of 1917, forfeiture of charter as to domestic cor- 
porations, or of right to do business as foreign corporations, 
occurred at 6:00 p. m. of Saturday before the first Monday in 
the following March. 

By the amendment in force May 11, 1917 (Sees. 3664 
et seq. , Pol. Code), the penalty for non-payment was changed to 



341 



the effect that as to domestic corporations their corporate 
powers are suspended except to defend an action in Court, and 
as to foreign corporations their right to do intra-state busi- 
ness is forfeited. 

CORPORATION LICENSE ACT: 



Original act passed in 1905 (Stat. 1905, p. 493) and 
amended each session since. This tax was not a lien on real 
property, but the forfeiture for non-payment must be watched 
as affecting the right to take, hold or convey property. In 
1913 the entire act was repealed, effective June 30, 1914, but 
reinstatement of defunct corporations was protected. A new 
act came into effect with a tax due on January 1, 1916, not a 
lien on real property to be superseded by the Act passed May 
11, 1917 (dovetailing in with the Franchise Act amendments of 
same date), by which the tax due January 1, 1918, was made a 
lien on real property, and covers the calendar year from 
January 1 to December 30. This tax is due January 1st, be- 
comes delinquent the first Monday in February at 6:00 p. m. 
(with $10.00 penalty for delinquency). Instead of forfeiture 
for non-payment, corporate powers are suspended and can only 
be exercised to execute deeds in fulfilment of prior con- 
tracts and to defend actions in court (note the difference 
between this and the franchise disability) . Foreign corpora- 
tions lose the right to transact intra-state business. Sus- 
pension occurs at 6:00 p. m. on Saturday before the first 
Monday in March. 

Under amendments of 1921 a penalty was added covering 
the amount for each year after suspension. 

A fine of $500.00 was imposed for failure to comply 
and the contract of a foreign corporation was declared void 
but enforcible against it. (Stat. 1921, p. 640.) 

The License Act does not apply to corporations in the 
exempt list which include those organized for educational, 
religious, scientific or charitable purposes, those not or- 
ganized or conducted for profit, foreign corporations doing 
solely interstate business, and those corporations taxed 
under Constitutional Amendment No. 1, and which include pub- 
lic utility, insurance and banking corporations (but not 
water companies). 

The official list of suspensions and forfeitures is 
not available for six or eight weeks thereafter and during 
this period the standing of corporations must be ascertained 
locally or from Sacramento when the search demands it. When 
the official list of suspensions and forfeitures is issued, 
the fact that a corporation is not listed therein is suf- 
ficient evidence that back taxes have been paid for the year 
covered by the list. 



342 



OIL PROTECTION STATE TAX; 



In effect August 9, 1915. (Stat. 1915, p. 1404.) Af- 
fects operators of oil and gas wells and lands within two miles 
"as near as may be". Assessed against owners of property on 
first Monday of every March; tax roll goes to State Controller 
first Monday in July and payments are made as under State 
franchise tax. Tax remains a lien until paid. 

The amendment of 1917 (Stat. 1917, p. 1586) enlarges 
scope of act. The State is divided into five districts. On 
the third Monday before the first Monday in each July notice 
is published in the papers of assessments made. After receipt 
of rolls Controller publishes a notice daily for five days. 
Assessments are a lien on all property of all persons assessed 
attaching on first Monday in previous March and the lien fol- 
lows the property. Suit for collection must on or before the 
30th of May following be brought in the county where the prop- 
erty is situated to collect amounts due. 

Amended in 1919 (Stat. 1919, p. 1165) as to other than 
tax provisions. 

FEDERAL TAX LIENS: 



Sec. 3186 of U. S. Revised Statutes, #5908, provides 
that any Federal tax unpaid after demand becomes a lien on 
all property and rights to property of the person liable there- 
for from the time the assessment list was received by the col- 
lector, valid against any mortgage, purchaser or judgment 
creditor when notice thereof is filed with the clerk of the 
District Court of the district where the property is situate. 
Any State may authorize filing of such notice in the county 
recorder's office in lieu thereof. Congress passed an Excise 
Tax Law (approved Mar. 4, 1913) affecting corporations in de- 
fault, and see also the Excise Tax Law approved October 3, 
1917, Title VI, Sec. 600a, as to income tax liens which are 
filed by the Internal Revenue Collector with the clerk of the 
District Court. The entries are made in the book of tax liens 
and show only the original tax which carries a penalty of 5% 
and draws interest at 1% per month. The collector can give a 
release of same upon estimate which he supplies. 

COUNTY TAXES: 



Taxes become a lien at 12 o'clock noon on the first 
Monday in March of each year (#3717, Pol. Code) and cover the 
succeeding fiscal year from July 1st to June 30th. 

PAYMENT, DELINQUENCY, SALE: 

County taxes are payable in two installments, both pay- 
able on the third Monday in October of each year, the first 



343 



half (which includes all the personal property tax) becomes 
delinquent on the first Monday in December at six p. m. , when 
15% is added. The second half is delinquent on the last 
Monday in April at six p. m. , when 5% is added to all amounts 
unpaid. Advertising the sale starts June 5th and extends for 
three weeks, after which all property in delinquency is de- 
clared sold to the State of California early in July and is 
so marked on the rolls. Penalties and interest at 7% are 
added after the sale, the property being assessed as usual 
thereafter for four years. Five years after the original 
sale to the State, the property, after legal advertisement 
thereof, is offered at auction, unless it has been previously 
redeemed prior to or on the day of sale upon the auditor's 
estimate, and is struck off to purchasers, who are allowed 
thirty days' exclusive right of paying and redeeming all back 
taxes and taking a deed. Upon such a sale as this searchers 
must be careful to bear in mind that, although the taxes for 
the four years after the sale to the State are stamped on 
the rolls as "Redeemed", such redemption is made on behalf of 
the holder of the tax deed and not for the record owner. 

The same procedure has been officially adopted by 
several cities as to their city taxes, which are added in 
with the county taxes and both are collected as one amount. 
(See Act 4067c, Stat. 1913, p. 499.) 

PERSONAL PROPERTY TAX: 

Unsecured personal property taxes are payable on de- 
mand to the assessor. Personal property taxes of persons also 
assessed for real estate can be charged when assessed against 
any parcel of real property owned by such persons, in which 
case the realty tax will not be accepted unless the personal 
property tax is paid also. This is of importance to purchas- 
ers who assume taxes on land acquired as per their escrow 
instructions without any intention of paying the seller's 
personal property tax. 

Personal property is taxable at place of domicile of 
the owner, but where title is vested in a trustee, the bene- 
ficiary living elsewhere, the trustee is deemed the owner for 
purposes of taxation. (See Mackey vs. San Francisco, 128 Cal. 
678, 61 Pac. 382.) This appears to apply to stocks of for- 
eign corporations held by a trustee here. 

ORDER OF ENCUMBRANCES: 



Next after current taxes, set up unpaid taxes if any, 
county and city; then any sale to the State and city, and 
then sales to individuals, county sales preceding city sales. 
Sales to individuals where no deed has been issued can be ig- 
nored (3785 Pol. Code, amended March 23, 1907), the purchaser 
being deemed to have relinquished all his rights under the 
sale. This does not mean that the deed must be recorded, the 



344 



act merely says it must have been "made". Unless the assess- 
ment upon which a sale is based is against the owner of record, 
look out for a double assessment and, if found, have the sale 
canceled, remembering that in former years assessments were 
often carelessly made. 

TAX SALE, REDEMPTION OF PART ONLY : 

Proceed under 3818 Pol. Code as amended and in force 
1917. If no separate valuation on roll, auditor will estimate 
amount for redemption. Notice to be sent by registered mail 
to party assessed who has right to protest. 

Tax sale to State never outlaws. Sec. 3788, Pol. Code 
does not apply to State. (117 Cal. 695.) 

PRORATING OF TAXES: 



This is a matter of arrangement and agreement between 
buyer and seller. A definite statement should be called for 
by an escrow holder. In 1911, owing to controversy and dis- 
putes, the following procedure was adopted throughout the 
South by all title companies: 

Rules governing prorating of taxes: 

On and after September 14, 1911, in all realty 
transactions, taxes shall be prorated from July 
1st to July 1st, and if prorating is done prior 
to the first Monday in October, it shall be done 
on the basis of last year's taxes. 

If improvements have been added prior to the 
first Monday in March, add to the assessed value 
50% of the value of improvements and calculate 
on the basis of last year's tax rate. 

Any prorating after the first Monday in 
October shall be done on the current assessment 
as shown by the city and county records. 

TAX SALES ON PUBLIC LANDS ON WHICH FINAL 
PAYMENT HAS NOT BEEN MADE: 

Where the possessory interest of a person not entitled 
to patent for lands, either of the United States or of the 
State of California, has been assessed and later sold to the 
State for non-payment of tax, note the sale after description, 
thus : 

NOTE: In book page of tax sales, County 

Tax Collector's records, appears the record of a sale of said 
land to the State of California for (State and) county taxes 

of the fiscal year Amount of sale $ . Said 

land being assessed as the property of John Doe. At the date 



345 



of said assessment, the title to said land was vested in the 
United States (or in the State of California) and said John 
Doe was not at that time entitled to a patent (or said John 
Doe and his successors in interest never became entitled to 
a patent). Proceedings under Sec. 3805a of the Political 
Code should be taken to cancel said sale of record. 

SERVICE BY PUBLICATION BY TAX TITLE 
AGAINST RECORD OWNER : 

Do not ever vest under a judicial decree brought by 
holder of a tax title against the record owner where service 
of summons was made by publication or otherwise than person- 
ally; vest in the record owner, set up the tax sale and title 
as an encumbrance in the usual way and follow it by a note 
covering the suit and decree. 

TAX EXEMPTION: 



Ex-soldiers, their widows or dependents, residents of 
California, are entitled to a deduction of $1,000.00 from the 
assessed valuation of their property, provided the estate 
value, wherever located, does not exceed $5,000.00, and pro- 
vided the claim for deduction is made each year on making 
return to the assessor. 

POLL TAX: 



The poll tax was abolished Dec. 19, 1914, at the elec- 
tion of 1914 by initiative amendment to the State Constitution, 
(Stat. 1915, page 1923.) This does not affect the poll tax of 
1915, which was a lien when the amendment became effective. 

U. S. EXCISE TAX: 



The Act of Congress approved March 4, 1913, provides 
that if corporations fail to pay their annual excise tax, upon 
delinquency, the Collector of Internal Revenue for each dis- 
trict shall file a statement of amount due with penalties with 
the clerk of the U. S. District Court for that district, which 
thereupon becomes a lien on all property of the corporation in 
that judicial district. When found these taxes must be shown 
as an encumbrance in the guarantee. The fiscal year runs from 
July 1 to following June 30 and is assessed against the fair 
market value of the stock. 

STREET BOND: 



Payment before due date. Stat, of 1917, p. 160, Chap. 
116, amends Vrooman Act of 1893 by allowing discharge of lien 
by paying the city treasurer unpaid principal, accrued inter- 
est, the next interest installment and six months' interest 
on unpaid principal. The treasurer to enter full payment on 
his bond register. 



346 



IRRIGATION DISTRICT TAX SALES ; 

Under Act of 1887 (Stat. 1887, p. 29) redemption may be 
made within 12 months. Sec. 3785, Pol. Code, relating to gen- 
eral taxes and providing that deeds must issue in 12 months, 
does not apply, being distinct from the laws governing irri- 
gation districts. A purchaser's interest under a sale is not 
terminated by failure to procure deed. 

STREET ASSESSMENTS, PRIORITY OF LIEN: 



It has been decided in the case of Woodhill and Hulse 
Co. vs. Young et al. , that: "The last assessment imposed is 
the paramount lien, as between liens and not regarding the 
ownership of the land." (Cal. Dec, Vol. 58, of July 15, 1919, 
p. 42.) 

COUNTY WEED TAX: 



(Stat. 1921, p. 1690, in effect Aug. 2, 1921.) Board 
of supervisors declares nuisance, issues order to abate, pub- 
lishes and mails to assessed owner. Board may do work and 
file notice of lien in recorder's office. Action may be 
brought within 90 days. (Treat like mechanics' liens.) 

BONDS: 



When amount of an assessment is $25.00 or over on work 
done under the Bond Act, the assessment automatically goes to 
bond 30 days after date of lien. Said bonds are recorded in 
city treasurer's office and draw 7% per annum, payable semi- 
annually on January 2nd and July 2nd of each year. Principal 
payable in ten equal annual installments on January 2nd of 
each year. Owner of bond can demand property sold as soon 
as delinquent for total unpaid amount plus the amount of in- 
terest up to the end of ten years. (Time bond would expire.) 
Bonds may be paid in full and cancellation obtained through 
city hall upon payment of unpaid balance of the principal 
plus 14% thereon and plus all unpaid accrued interest to- 
gether with the installment of interest next to become due. 
When amount of assessment is less than $25.00 it is treated 
same as cash lien. 



(End of Subject) 



350 



TRUSTS 

PERMISSIBLE TRUSTS: 

The common law doctrine of Uses and Trusts has been 
abolished in California, and the Chapter on Trusts defines 
the only trusts allowed. (C. C. 857 et seq.) 

Express trusts may be created for any of the following 
purposes as set out in Sec. 857, C. C. : 

1. To sell and convey real property and to hold or 
reinvest or apply or dispose of the proceeds in accord- 
ance with the instrument creating the trust. 

2. To mortgage or lease real property for the benefit 
of annuitants, or devisees or legatees, or other beneficiaries, 
or for the purpose of satisfying any charge thereon. 

3. To receive the rents and profits of real property, 
and pay them to, or apply them to the use of any person, 
whether ascertained at the time of the creation of the trust 

or not, for himself or for his family during the life of such 
person, or for any shorter term (subject to the rules of 
title 2 of division 2 of part 1 of this code). 

4. To receive the rents and profits of real property 
and to accumulate the same for the purposes and within the 
limits prescribed by the same title. 

5. To convey, partition, divide, distribute or allot 
real property in accordance with the instrument creating the 
trust, subject to the limitations of the same title. 

Subdivision No. 5 above was added in 1913 (Stat. 1913, 
p. 438) , prior to which time a trust to convey was invalid. 
(Estate of Fair, 132 Cal. 523.) Trusts are valid only as 
authorized by the code (171 Cal. 449). 

TRUSTEE'S POWERS LIMITED TO TRUST ; 

Every act of the trustee is void unless within the 
powers given and covered by the instrument creating the trust 
(870 C. C). Power to sell and convey does not give power to 
exchange (134 Cal. 641, 3 Cal. App. 371). "Sale" means trans- 
fer for a money consideration. But distribution to a trustee 
with power to sell and reinvest the proceeds in other lands 
gives power to exchange (154 Cal. 145, 14 Cal. 540). 

Trust in a will under which real property was devised 
to a named trustee "with power to invest and reinvest", implies 
power to sell said real estate and turn it into cash (134 Am. 



351 



St. Rep. 537). Title taken by the trustee under a will is only 
sufficient for the execution of the trust (Est. Ruth, 28 Cal. 
216). But where the will is construed in the decree of dis- 
tribution the decree becomes a conclusive adjudication of the 
validity of the disposition made by the testator. (119 Cal. 
139, 119 Cal. 344. ) 

NOTICE OF TRUST, USE OF WORD "TRUSTEE": 

Deeds are sometimes found running to "John Smith, 
Trustee". Does the word "Trustee" give notice of a trust or 
is the word unsupported by any qualification, merely descrip- 
tive? In the absence of a direct decision involving real 
estate, it is the custom of title companies to make some in- 
vestigation before passing a deed from such a grantee. Safety 
dictates that such a deed should be executed by "John Smith, 
Trustee, John Smith and Mary Smith, his wife". It has been 
decided that the word "Trustee" following a person's name in 
a stock transaction does not impart notice of any trust. (42 
Cal. 139, 48 Cal. 99, 163 Cal. 769.). The decisions apply to 
personal property only. (163 Pac. 47.) 

Sec. 869, C. C, and Sec. 869a (in effect August 17, 1923), 
would seem to imply that the words "Trustee" or "as Trustee" 
following the grantee's name impart no notice, but the language 
is not as clear as it might be and it must be remembered that 
a trustee takes only sufficient title to carry out the duties 
of his trust, leaving possibly some title or remainder in the 
grantor. 

"Trustee" added to a name is more than descriptive 
(Jones #223, Devlin #210; 41 Am. St. 224). But see C. C. P. 1963, 
Sub. 37. It was decided in 128 Cal. 362 that a deed to "William 
Blankman, Executor" gave sufficient notice to put one on en- 
quiry. (See, also, 101 Cal. 387.) 

A patent running to "B, trustee" was held to impart no 
notice of any trust where "B" paid the money (100 U. S. 58). 
A patent to "A, administrator of B, deceased" vests title in 
"A" (32 Cal. 202) and deed by "A" is good to pass title. 

"Trustee" following the signature on a promissory note 
means nothing (122 Cal. 28). It is the promise of the person 
who signs. 

Where the name of the beneficiary is disclosed, the case 
is different. (See Wittfield vs. Forster, 124 Cal. 418.) Where a 
deed runs to "B as trustee in trust for C" there is a clear 
intention to create a trust, but the trust is void, its pur- 
poses not being clearly indicated as required by Sec. 2221, C. C. , 
and either no title passes or a resulting trust remains in favor 
of the grantor, since a trustee takes only such estate as is 
necessary to carry out the terms of the trust, leaving the re- 



" 



352 



mainder of the title in the grantor. But if a consideration 
passed, then the trustee holds under a resulting trust for the 
person who put up the consideration, under 853 C. C. 

"Trustee" after the name of a depositor in a bank gives 
notice of a trust. (Keeney vs. Bank of Italy, 33 Cal. App. 515.) 

Under Section 1213, C. C. , a recorded conveyance is con- 
structive notice of its contents, the word "Trustee" being a 
part of the contents, the title man should protect his vesting 
by enquiring of the alleged "Trustee" as to the nature of his 
trust and its scope and powers. He will be protected on the 
information given where he has no knowledge to the contrary. 
(Sternfels vs. Watson, 139 Fed. 505.) 

It is doubtful if enquiry outside the records is suf- 
ficient to make a marketable title, as such a deed destroys 
marketability. It at least makes it obligatory on all subse- 
quent purchasers to protect themselves by enquiry. 

MORTGAGE TO TRUSTEE: 



When mortgage runs to Smith, trustee, the mortgagee has 
power to release. If he is not trustee (trust being undis- 
closed) , he is accountable to beneficiaries only. 

DELEGATION OF POWERS : 

A trustee cannot delegate his trust powers unless the 

trust so provides ; he can delegate ministerial powers such as 

signing documents after a deal is settled. (39 Cal. 287.) He 

cannot assign the trust. (28 Enc. Law 767, 8 S. W. Rep. 523, 66 
111. 438, 39 Mo. 13. ) 

ALL TRUSTEES MUST SIGN: 

Co-trustees with power of sale cannot execute separate 
deeds because no one trustee can convey any part of the trust 
property. (Perry on Trusts. Sec. 412, 18876 N. S. 645, 860 
and 2268 C. C. ) 

APPOINTMENT OF NEW TRUSTEES: 



If the instrument creating the trust makes no provision 
for any substitution or succession of trustees, and the named 
trustee dies, becomes incapacitated or refuses to act, the Su- 
perior Court, on petition, must make the appointment. (2287 C. C. ) 

IDENTITY OF TRUSTEES : 

May be established by short court proceedings under new 
section 402, C.'C, in effect July 29, 1921. 



353 



FIDUCIARY CAPACITY : 

A trustee, guardian, executor, officer of a corporation, 
or any other person in a fiduciary capacity cannot, in his offi- 
cial capacity, deal with himself in his individual capacity. 
A person cannot be trustee for himself. (80 Cal. 237, Kerr Cyc. 
2287.) 

A trustee, guardian, executor or administrator cannot 
release or assign a mortgage made by himself, unless he first 
obtains an order of court, authorizing the same; neither can 
persons in such capacities convey or mortgage property to 
themselves. (Moore vs. Gould, 151 Cal. 728.) 

TRUST CAPACITY OF EXECUTOR ; 

It is beyond the power of an executor to make a volun- 
tary admission that his testator, who owned the record title to 
real property, only held said title as a trustee. (50 Cal. 571, 
74 Cal. 436, 112 Cal. 387.) 

LEASE OF TRUST PROPERTY: 



Cannot be made beyond existence of trust. Is valid so 
far and void as to excess term. Power to pay rents to benefi- 
ciaries implies power to lease. (33 C. A. D. , Gartner vs. 
Isaacs; 12 Cal. App. 449, South End W. Co. vs. Lavery. See, 
also, 73 N. E. 1127.) 

CLAIM OF TRUST INTEREST BY STRANGER: 



Notification to a trustee by stranger to record title 
that he claims an interest in the land is beyond the purview 
of trustee's agency and good title passes to purchaser under 
a deed from the trustee. (52 Cal. Dec. 419.) 

The whole title vests in the trustee, the beneficiaries 
take no interest in the property, but may enforce the perform- 
ance of the trust. (868 C. C.) 

TRUSTEE SUED AS INDIVIDUAL: 



When sued as an individual, the trust powers are not 
impaired, personal interests only are affected. So held in 
Colorado. (123 Pac . 139, 127 Pac. 139, 139 Pac. 551.) Our 
courts decided "Hudson individually is not Hudson, Receiver", 
in 18 Cal. App. 642 and 45 Cal. 439. A decree against indi- 
viduals does not affect their rights as trustees of a corpora- 
tion. (Warden vs. S. P., 56 Cal. Dec. 1.) 

BENEFICIARY UNIDENTIFIED: 



Deed to trustee for an unincorporated association with 
no power to sell is void. (124 Cal. 418.) 



354 



TRUSTEE PROPER PARTY TO ACTION; 

A legal title is vested in the trustees for the purposes 
of the trust ; they are the proper parties to an action, and not 
the beneficiary. (Warren Co. vs. All Persons, 153 Cal. 774.) 

FORECLOSURE OF BENEFICIAL INTEREST : 

Title remains undisturbed in the trustee. The execu- 
tion and sale of the beneficial interest is no lien on the land 
itself. (Ill Cal. 628.) 

FOREIGN TRUSTEE: 



Held not authorized to maintain an action as such in 
this State. (Iowa and Cal. Land Co. vs. Hoag, 20 C. D. 101, 
132 Cal. 627.) 

The California Bank Act prohibits corporations doing a 
banking business and includes trust companies, the acceptance 
of any express trust, court or private being defined as "Bank- 
ing", except that any person or corporation may hold money in 
escrow pending investment or may act as trustee under deeds of 
trust to secure obligations solely for the repayment of money 
other than corporation bonds (Sec. 101). 

PERPETUITY: 

A trust is void if by any possibility it may suspend 
power of alienation beyond legal period. (Est. of Caverly, 
119 Cal. 409 and 124 Cal. 537.) This does not apply to a char- 
itable trust. 

STATUTE OF PERPETUITIES: 

The absolute power of alienation cannot be suspended 

(except in one specific instance of a contingent remainder in 

fee in 772 C. C. ) by any limitation or condition beyond the 

lives of persons in being at the creation of the limitation or 
condition (715 C. C. ) . 

This section has been amended to extend to lives in 
being or 25 years. 

CHARITABLE TRUSTS: 



A charitable trust or a charity is a donation in trust 
for promoting the welfare of mankind at large or of a commu- 
nity, or of some class forming a part of it, indefinite as to 

members and individuals It may, but it need not, seek to 

spread religion or piety. Schools and libraries, equally with 
asylums, hospitals and religious institutions, are included 
within its scope. (People vs. Cogswell, 113 Cal. 129.) 



355 



Sees. 847 and 457 of the Civil Code apply only to private 
trusts and not to trusts for charitable uses. (Est. of Sutro, 
155 Cal. 727.) 

Charitable trusts are valid in this State. (Est. of 
Hinckley, 58 Cal. 457.) 

Donations for the advancement of religion are charitable 
donations. (In re Hewitt, 94 Cal. 376, 58 Cal. 457.) 

Courts look with favor upon all attempted charitable 
donations and will endeavor to carry them into effect, if it 
can be done consistently with the rules of law. A bequest 
intended as a charity is not void and there is no authority to 
construe it to be legally void if it can possibly be made good. 
(Estate of Hinckley, 58 Cal. 457; Estate of Willey, 128 Cal. 1.) 

See, also, Estate of Upham, 127 Cal. 90. A money bequest 
to a Natural History Society was considered charitable and up- 
held in Winchester Estate. (133 Cal. 271.) 

CANNOT SELL WITHOUT COURT ORDER ; 

Trustees of a charitable trust cannot sell without 
court order. 

Where a power of sale has not been expressly or implied- 
ly given to a trustee of a charitable trust or a court of equity 
has not given its sanction, the trustees are without power to 
alienate. (11 Corpus Juris 354.) 

Despite any lack of power that may exist in a trustee, 
it is recognized that a court of equity has a general and in- 
herent jurisdiction as incidental to the administration of a 
charitable estate to order the alienation of charitable prop- 
erty in a proper case. (11 Corpus Juris 354, citing many cases.) 

A court of equity has jurisdiction to decree a sale of 
property held in trust for charitable or religious purposes 
when, in its opinion, the objects of the trust would be more 
effectually carried out by such sale. (Alemany vs. Wensinger, 
40 Cal. 288. ) 

When the court directs an alienation of property given 
by a testator to a charity, the alienation takes place, not by 
the trustees in the exercise of the power under the will, but 
by force of a decree of the court rendered in the exercise of 
its judicial power of administration in respect to charitable 
trusts. (Landland vs. Walker, 151 Mo. 210; 52 S. W. 414.) 

SOME EXAMPLES: 



Deed to trustees (naming them) in trust for the United 



356 



Brethren in Christ (not incorporated) for camp-ground, meeting 
house, and parsonage purposes, was held to pass the legal title 
to the trustees or the survivors of them. The quarterly con- 
ference of the church did not transfer title from the old to 
new trustees. (Horsman vs. Allen, 129 Cal. 131.) (See, also, 
154 Cal. 640. ) 

A deed to trustees (not naming them) of an unincorporated 
church is not a valid conveyance, as there is no grantee. (114 
Cal. 295; Jones on Real Property, 237-8, and Devlin on Deeds, 
120-A. ) 

A bequest to the board of trustees of a religious so- 
ciety, to be "used for missionary purposes" and be "equally 
divided between foreign and domestic missions", is a bequest in 
trust for charitable uses, within the meaning of Section 1313 
of the Civil Code. (In re Hewitt, 94 Cal. 376.) 

Deed to seven trustees of the "M. E. Church of U. S. A.", 
so drawn in error, can be amended by action and decree against 
the trustees and the Attorney-General as representing whole body 
of beneficiaries. (85 Cal. 488, 9 L. R. A. 748.) 

Deed to A, B and C, trustees of religious body later 
incorporated. Deed creates a charitable trust. Sees. 847 and 
857, C. C. , do not apply. Trustees or survivors hold title, or 
if all deceased, then Superior Court must appoint a successor. 
(Horsman vs. Allen, 129 Cal. 131.) Trustees have no power to 
convey and 598 C. C. does not apply. The court in equity can 
authorize a sale and conveyance in an action against the cor- 
poration by the trustees and order application of proceeds to 
religious purposes consistent with the trust. (40 Cal. 288.) 

If new trustees have been elected to represent the 
congregation or members, they may have the right to object 
and are proper parties defendant in an action to obtain leave 
to sell. But trustees, survivors or successors can deed 
direct to the beneficiary corporation, as they hold the bare 
legal title and corporation can then proceed under 598 C. C. 
and sell under order of court. 



TRUST DEEDS 

DEFINED: 

Trust deeds given as security for loans was upheld in 
Sacramento Bank vs. Alcorn. (121 Cal. 379.) 

A deed of trust to secure a debt is not a mortgage, 
but passes the legal title to the trustee for the purpose of 
the trust, which remains in him until the debt is paid or a 
sale is made of the premises, and the fact that the note se- 
cured is outlawed does not affect the title of the trustee, 



357 



or his power to sell to pay the debt. (Travelli vs. Bowman, 
150 Cal. 587.) 

The debt secured does not outlaw. (54 Cal. 298.) 

A deed of trust of land executed for the sole purpose 
of securing an indebtedness of the grantor, and empowering the 
trustee to sell the property in order to obtain money for the 
payment of the indebtedness, is not a mortgage and is a valid 
trust deed under Sub. 1 of Sec. 857, Civil Code. (Younger vs. 
Moore, 155 Cal. 767.) (See, also, More vs. Calkins, 95 Cal. 771.) 

A trust deed is a mortgage with power of sale in its 
nature, the trustor retaining all incidents of ownership. (153 
Cal. 57, 94 Pac. 604, 121 Cal. 379.) 

LEGAL TITLE PASSES: 



A trust deed does not create a mere lien or encumbrance, 
but vests the legal title to the property in the trustee for 
the purpose of the trust, leaving in the trustor, his succes- 
sors or assigns, the equitable title. (C. A. Warren Co. vs. 
All Persons, 153 Cal. 771.) 

RIGHTS OF TRUSTOR; 

A trust deed conveys no right of possession. Its execu- 
tion does not abandon a recorded homestead or the filing of a 
homestead declaration which the trustor may maintain against 
his creditors not secured by the trust deed or some valid lien. 
(70 Cal. 236, 153 Cal. 97.) In practical effect a trust deed 
differs from a mortgage only in that no action at law is neces- 
sary to foreclose it and there is no right of redemption after 
sale on default. Our Supreme Court has said: "Trust deeds to 
secure payment of a debt are an anomaly in our system and are 
admittedly inconsistent with the policy of this State in regard 
to mortgages. It is at least doubtful if they would be now 
sustained but for a line of decisions made before they were 
very seriously questioned." 

TRUSTOR OR BENEFICIARY MAY ACT AS TRUSTEE: 

Though ordinarily a cestui que trust should not be ap- 
pointed trustee, yet a beneficiary is not absolutely incapaci- 
tated from being a trustee, and the trust is not invalid. (Nellis 
vs. Rickard, 133 Cal. 617.) 

A person may act as trustee of the trust created by 
himself. ( Cahlan vs. Bank of Lassen Co., 11 App. 540.) 

It is possible for one who owns property to so deal 
with it, while retaining the legal title, as to make himself a 
trustee for the benefit of another. (Noble vs. Learned, 153 
Cal. 251.) 



358 



Trust deed to official of bank as trustees to secure 
a note held by bank at time of foreclosure is not invalid. 
Trustee must act fairly. (Portola Realty Co. vs. Carlston, 
32 Cal. App. 282. ) 

It was held in Kinard vs. Kaelin (22 Cal. App. Rep. 383- 
391) trustee may have an interest in sale of the property 
secured in the absence of fraud, the creditor himself may act 
as trustee and may purchase at his own sale. In Roberts vs. 
True (7 Cal. App. Rep. 379) the payee was also trustee. It was 
held that this did not affect his right to a sale of the prop- 
erty. See, also, Kraft Co. vs. Bryan (140 Cal. 73), also May- 
hall vs. Eppinger (137 Cal. 5). The court would no doubt scru- 
tinize closely the acts of a trustee under a sale to himself. 

A trust deed for the security of the payment of a debt, 
wherein the beneficiary and trustee are the same person, comes 
within Sec. 858 of the Civil Code. Wherein the "power of sale" 
is held to be part of the security which takes it out of the 
usual category of trusts and it is held to pass to an assignee 
of the debt itself. (See, also, Sees. 2932 and 2936, C. C.) 

An assignment of the "Trust" under the above section is 
not sufficient ; the note and debt secured thereby should be 
assigned. 

ASSIGNMENT BY BENEFICIARY; 

A trust deed note may be assigned absolutely or as col- 
lateral security by endorsement on the back of the note. Notice 
of same should be given to the trustee. 

ADDITIONAL ADVANCES: 



The law does not require that a definite statement of 
the amount to be loaned additionally be set out. (Buck Co. vs, 
Buck, 162 Cal. 300, also 21 Cal. 637.) 

Where deed of trust contains optional advancement 
clause, advances made to trustor after he has deeded the land 
are not secured by the trust indenture. Trustee has no right 
to sell for default, except as to the original note, and trus- 
tor may recover from trustee the excess above the note if the 
note owner bids in the property. (30 C. A. D. 412.) 

ACCEPTANCE OF TRUST; 

Omission of trustee's signature does not invalidate a 
deed of trust. (90 Cal. 25.) 

TRUST DEED BY ATTORNEY-IN-FACT: 

Power "to mortgage" does not include power to execute 



359 



a deed of trust, but power "to hypothecate upon such terms 
as the attorney may see fit" is usually deemed sufficient 
for that purpose. 

CORPORATION AS TRUSTEE; 

A corporation can only act as trustee under a deed of 
trust if its articles of incorporation so empower it. (See 
Bank Act. ) 

CONVEYANCE FROM TRUSTOR TO TRUSTEE : 

A conveyance from the trustor to the trustee does not 
necessarily constitute a merger of title, and a certificate 
or policy should show the trust deed as an encumbrance or 
exception in the usual way. Do not presume a merger unless 
there is a positive declaration of parties that merger is 
intended. 

A note may be inserted in the certificate by way of 
explanation to the following effect: 

"Note. Subsequent to the date of the trust deed above 
shown, the owner of these premises conveyed the property to 
the trustee named therein. If it is desired to eliminate 
the trust deed from the records, an instrument should be 
filed showing that the debt secured is paid, or that the 
beneficiary acknowledges full satisfaction thereof." 

DEFAULT AND SALE 

CANNOT BE FOR ECLOSED : 

An ordinary trust deed cannot be foreclosed as a mort- 
gage. (Kreft vs. Bryan, 26 C. D. 332, 140 Cal. 83, but see 
92 Cal. 457.) 

PLACE OF SALE: 



The law declares no particular place of sale on de- 
fault, leaving it open to contract. 2924 C. C. and 692 C. C. P. 
are silent. As to right to contract see 161 Cal. 285, also 
Perry on Trusts, 602, and 27 Cyc. 1476 and 23 S. E. 971 (173 
N. C. 60 and 118 N. C. 73), 91 S. E. 525. Laws defining place of 
sale are not retroactive. (See Texas case in 212 S. W. 647.) 

NOTICE TO BE RECORDED: 



Sec. 2924, C. C. , as amended and in effect July 27, 1917, 
provides that the power of sale in a mortgage or trust deed 
cannot be exercised (with certain specific exceptions) until 
the mortgagee or beneficiary record notice of the breach and 
election of sale not less than three months prior to the com- 



360 



mencement of said proceedings, and notice must further be 
given as upon execution sale, which means posting and adver- 
tising of notice as prescribed by 692 C. C. P. This does not 
affect trust deeds executed prior to July 27, 1917, though 
default occurs subsequently. Sec. 692, C. C. P., as amended 
August 17, 1923, requires posting of notice upon the property 
20 days before sale. 

NOTICE OF SALE : 

Sale on last day of published notice held good where 
trust deed calls for publication "once each week for four 
successive weeks". (136 Cal. 3. See, also, 82 Cal. 214, 86 
Cal. 126, 104 Cal. 522, 105 Cal. 582 and 112 Cal. 661, also 
123 Pac. 139.) 

Last publication under terms of trust deed was made 15 
days before day set for sale and held "not unreasonably re- 
mote" in 23 Cal. App. 449. 

POSTPONEMENT OF SALE, NOTICE: 

There is usually no provision in the trust deed. There 
seems to be no California case in point. In Coxe vs. Halsten 
(2 N. J. Eq. 311) Court held, where statute provides only for 
publication of time first appointed, that no publication of 
adjournment was necessary. 

In Allen vs. Allen (9 N. J. Eq. 286) proclamation at time 
and place of sale was held to be sufficient. 

In Ferebee vs. Sawyer (83 S. E. 17, N. Carolina), where 
manner of postponement not provided, reasonable notice is all 
that is required. (See, also, 58 Cal. App. 174 and 141 Cal. 
66, postponement involved and no question raised.) 

SALE TO BENEFICIARY: 



Sale by trustee to beneficiary corporation, where trustee 
is a director of said corporation, is voidable. (Herbert Craft 
Co. vs. Bryan, 23 C. D. 615, 68 Pac. 1020, 133 Cal. 569.) 

Trustee may bid in the property for beneficiary. (92 
Cal. 467.) 

INADEQUACY OF PRICE: 

Trust deed for $6500.00, sale for $500.00 (prior mort- 
gage in force for $1500.00), was held not fraudulent in ab- 
sence of unfairness where trustee was bound to make sale. 
(Winbigler vs. Sherman, 23 Cal. App. 449.) Sale will be set 
aside when price paid is grossly inadequate. (99 Md. 584, 128 
111. 129, 128 Mich. 241, 19 Am. St. Rep. 266.) 






. 






361 



Though there is no redemption from the sale (58 Pac. 
83), the property was held to be subject to redemption where 
trustee fixed price for beneficiary and had same bid in. (128 
111. 129, Cent. Dig. 35-1679.) 

SALE OF HOMESTEAD: 

If property be part homestead, other property must be 
sold first. (Humboldt Savings Bank vs. McClunty, 42 C. D. 613.) 

TRUSTEE'S RIGHTS: 



May be owner of debt, may sell though he has begun fore- 
closure, or when foreclosure is pending. (137 Cal. 5, Mayhall 
vs. Ep. , 24 C. D. 68.) He may act by attorney or auctioneer. 
(28 Enc. Law 768. ) 

TRUSTEE'S DEED : 

Recitals are conclusive (139 Cal. 593, 29 Am. Stat. 128, 
26 C. D. 183). Trustee need not state his official capacity 
(107 Cal. 588). Trustee may execute a correction deed (Balfour 
vs. Woodworth, 56 Pac. 893). 

DEFICIENCY AFTER SALE: 

Holder of note can sue for balance after sale. (Bk. 
vs. Copsey, 22 C. D. 272, 22 C. D. 303.) 

SURPLUS AFTER SALE: 

Payable to trustor or his successor. (27 Cyc. 1498; 
Jones on Mtgs., 1940; 28 Enc. Law 834.) 

BENEFICIARY AS DEFENDANT : 

In foreclosing a prior lien mortgage, the trustee is 
a necessary party defendant, and though the beneficiary may 
not be a necessary party (91 Cal. 492, 167 Cal. 459, 135 Pac. 
719), it is considered good practice to include the record 
beneficiary, or for the trustee to advise him or his assignee 
of the suit where practicable. 

SEARCHER ' S DUTY EXAMINING SALES : 

Check the recitals in the trust deed against those in 
the trustee's deed. The salient points to be examined are 
as follows: 

The dates of the respective instruments and the book 
and page of the record should be checked to identify the 
instruments. Care should be exercised to see that the terms 



362 



of the trust deed as to demand and default are duly recited; 
that notice has been given in accordance with the law, and 
at the place specified. If the trust deed provides in terms 
that the recitals in the trustee's deed as to all the salient 
points shall be conclusive, then such recitals in the deed 
from the trustee may be so regarded. 

A comprehensive monographic note in relation to Sales 
and Conveyances by Trustees will be found in 19 Am. St. Rep. 266, 

BENEFICIARY BANKRUPT : 

A bankrupt cannot request rightfully a reconveyance of 
a trust deed in his favor. After adjudication the trustee 
can compel surrender of all assets of the bankrupt. (184 
U. S. 1.) The trustee may recover the debt a second time. 
(Am. Rep. 523 and 325.) 



BUSINESS TRUSTS 

The common law or "Massachusetts Trust" so called, 
largely in use in Eastern States as a substitute for the 
corporate form of existence, has appeared of late years 
upon the public records in California in connection with 
real estate transactions. So varied are the forms of the 
trust agreement under which they operate that, in the ab- 
sence of definite court decisions applicable in all cases, 
each of such trusts must be treated upon its own merits and 
the construction of the trust agreement referred to counsel 
for opinion for its legality or otherwise. 

In measuring the legality of a business trust declara- 
tion it should be borne in mind that the only express trust 
allowed in this State are those enumerated under Sec. 857, C. C. 

If the trust agreement is within the scope of this sec- 
tion, it is apparently lawful. If the trustees do not take 
control under and draw their powers from the trust instru- 
ment alone, but are under the control of the so-called share- 
holders, then probably a partnership has been created. 

The California Constitution, Art. XII, Sec. 4, defines 
"Corporations" as including "all associations and joint stock 
companies having any of the powers or privileges of corpor- 
ations not possessed by individuals or partnerships". If 
this applies to a trust not strictly within the terms of 
857 C. C. , it would probably be classed as a corporation ille- 
gally formed. 

As to the deed to the trustees, equity will sustain a 
grant to trustees of an unincorporated voluntary association 



363 



when a valuable consideration has been paid to the grantor. 
(Ruddick vs. Albertson, 154 Cal. 640.) The trustees would 
hold the legal title under a resulting trust without power 
to grant except to the beneficiaries or with their joinder as 
grantors in the deed. 

The Corporate Securities Act of 1917 (Blue Sky Law) 
defines the word "Company" as including "all associations, 
joint stock companies and partnerships of every kind" and 
claims jurisdiction over business trusts. The Commissioner 
of Corporations has issued many permits to sell the securi- 
ties of these trusts. 

There is an Oregon decision (Superior Oil & R. S. vs, 
Handley, 195 Pac. 159) which held that under the Bank Act 
only "a corporation duly organized for that purpose" can 
transact a general trust business in that State. This case 
involved a mandamus to the Corporation Commissioner to com- 
pel him to issue a permit to sell shares in a business syn- 
dicate. The court found the Commissioner had no jurisdic- 
tion, that the contemplated sale of beneficial interest cer- 
tificates was "doing business" in Oregon and was governed by 
the laws regulating trust business within the State. The 
California Bank Act is in accord with the Oregon statute 
as to the control of trust business and may be held to ap- 
ply to such trusts in this State ( though our Corporation 
Commissioner under the Blue Sky Law controls the sale of 
stock), which forbids transaction of trust business "ex- 
cept by means of a corporation duly organized for such 
purpose". The only rule for general application that can 
be given is 

"BE CAREFUL AND CONSULT COUNSEL". 



(End of Subject) 



INDEX 

Page 

Abstract of Title 55 

Accretion 32 

Acknowledgments 60 

Before a J. P 64 

" Recorder 64 

M Police Judge 64 

" Military Officer 64 

Curative Act 61 

Defined 60 

Essentials of 61 

Foreign 65 

Form for corporation 67 

" " " as atty.-in-fact .. 67 

" " atty.-in-fact 67 

" " individual 66 

" " married woman 67 

How corrected 62 

Law governing 60 

Ministerial, not judicial act 62 

Erroneous date 63 

Notary's name omitted 63 

Notary's qualifications and duties 65, 66 

Proof of execution 64 

Reason for 60 

Seal 63 

Venue 64 

Administrators. (See, also, Estates.) 

Appointment and qualification 193 

After distribution 194 

Action against 195 

Cannot dedicate streets 195 

" partition 195 

" disclaim property 195 

Lease by, is subject to judgments 199 

Foreign, no authority here 194 

Only one at a time 194 

Public 194 

Special 193 

Additional advances 358 

Affidavit, effect of 151 



376 



Page 
Agreement of Sale 

must be acknowledged 62 

completion, vendor dies 199 

not a "conveyance" 156 

vendee in default loses improvements . . . 158 

Aliens 

Act of 1913 75 

" " 1920 76 

Alien homestead 84 

Alien poll tax 84 

Alien property custodian 88 

Cropping contracts illegal 78 

Deed passes title, when 81 

Evasive guise 82 

Hindu as citizen 83 

Jap. soldiers ineligible 83 

Japanese treaty 75 

Hawaiian Japanese 79 

Lease to alien corporation 86 

May loan money on mortgage 80 

U. S. Supreme Court decisions 77, 78 

Washington State Act 78, 81 

Attachments 

defined 270 

deed sub j ect to 271 

homestead defeats 224 , 271 

how levied 270 

preserves priority of lien 270 

period good for 271 

merges in judgment , how 270 

on property in name of another 270 

released, how 271 

in bankruptcy 101 

Banks 

State regulation 137 

Consolidation 137 

Bankruptcy 95 

Adjudication, effect of 95 

" title upon 95 

" in foreign state, effect of . 101 

Debts not released on discharge 98 

Federal and State law 95 

Judgments as liens 98, 99 

Procedure 95 

Property exempt 97 

" omitted from schedule 96 



377 



Page 

Bankruptcy (Continued) 

Property upon discharge 97 

■ out of the U. S. A 102 

Prior attachment, effect of 101 

Sales by trustee 96 

Trustee not appointed 98 

Trust deed beneficiary bankrupt 362 

May claim homestead 223 

Benevolent societies unincorporated 137 

Cable Naturalization Act 85 

California 

admitted as State 1 

State lands 4 

Certificate of Title 

defined 55 

liability under 55, 179 

Charitable bequests 190 

Check as cash 180 

City lands 3 

Commission to broker 179 

Conditions 110 

precedent 110 

subsequent 110 

elimination of 118 

flats not private residence 117 

mutual servitudes 113 

negative easements 116 

race clause , when lawful 117 

reverter as property 116 

n form for release of 119 

reversioner estopped 117 

steps not part of house 117 

unlawful or void 110 

Werner vs. Graham case 112, 113 

Consideration, presumed 145 

Convict , right to make deed 149 



378 



Page 

Corporations 125 

acknowledgment by 67 

court order to sell , when 136 

defined 125 

de facto 126 

deeds , requirements of 126 

designation of agent 127 

defunct, deed to 134 

■ deed by 135 

dissolution 136 

filing articles 126 

franchise tax 131 , 340 

foreign, as trustee under will 137 

law governing 125 

license tax 129, 341 

lien relieved without revivor 135 

misnomer does not invalidate deeds 127 

partition of assets illegal 128 

revivor of 132, 133, 134 

religious corpn. can lease 136 

suspension and forfeiture 134 

service after forfeiture 135 

trustees must all act 135 

" identity of 135 

" powers on dissolution 136 

Covenants 110 

real or personal Ill 

implied by grant Ill -145 

that pass with land Ill , 112 

Curative Act 

as to acknowledgments 61 

n " maps 281 

■ " unsigned deeds 152 

Date, erroneous 63, 151 

Death, proof of 204, 230 

Dedication 

(see maps ) 280 

" by administrator, void 195 

" by husband alone 240 

Deeds 

acceptance by political body 154 

after acquired title 148 



379 



Page 



Deeds (Continued) 



consideration presumed 145 

carries street after vacation 146 

" after acquired title, when 148 

change of grantor ' s name 149 

convict may execute 149 

construed against grantor 151 

"conveyance" includes mortgage 158 

contract of sale not a conveyance 156 

county as grantor 155 

carries to street centers, when 162, 165 

date, error in, immaterial 151 

deed or will, when 157 

to dead person, not void 149 

delivery must be absolute 146 

" presumed 146 

" essential 146 

" in escrow 146 

defined 145 

exceptions and reservations 166 

to "estate" void 149 

filled in lot on water front 164 

foreign, signatures 153 

" recording of 153 

forged, void 151 

final understanding of parties 151 

grantee inserted after execution 150 

grantees hold equally 150 

to grantee "as separate property" 150 

grantee , capability of 149 

grantors must all be named 151 

grantor, when also grantee 149 

implied covenants 145 

irregularity in names 148 

incidents included 146 

life estate only 157 

possession of, as proof of delivery .... 146, 150 

recording after office hours 151 

for roads , fee or easement 156 

right to convey reserved 157 

"representatives" are heirs 158 

rents pass with transfer 146 

return to grantor, inoperative 146 

restraint of alienation 147 

signature by mark 152, 153 

school district as grantee 154 

for support and maintenance 157 

statutory short form 145 

seal unnecessary 145 

to take effect at death, void 147 

unsigned, not cured 152 

for "undivided acreage" good 157 



380 



Page 

Deeds (Continued) 

Veterans ' Welfare Board 155 

witness defined 153 

wild deed no cloud 157 

Description 159 

care in compiling 164 

government surveys 160 

habendum qualifies 161 

reference to map or deed of record 160 

rules of construction 159 

recognized boundaries 161 

reference to points of compass 161 

running to street centers 162 

stating acreage , effect of 160 

two in same deed, which governs 160 

Divorce. (See Husband and Wife.) 

Drained State lands 29 

Escrows 175 

broker' s commission 179 

claim by stranger of interest 178 

defined 146, 175 

deposit only, when 175 

homesteaded property, in 179 

incomplete , example of 176 

premature delivery of deed void 177 

pro-rating insurance 179 

" ■ rents 178 

" ■ taxes 178 , 344 

true escrow defined 175 

Estates 

Completion of contract to sell 199 

child unprovided for 190 

charitable bequests 190 

Distribution, creates no new title 201 

■ conclusiveness of 201 

" to grantee of heir 202 

" to heir of heir 202 

" may embody will 202 

" omnibus clause, effect of 204 

" subject to review 201 

foreign corp. as trustee under will .... 196 

Federal estate tax 208 

foreign probate 210 

forms for vesting 209 

foreign wills 190 



381 



Page 

Estates (Continued) 

inheritance tax 207 

inheritance by aliens 191 

judgments against decedent 200 

jurisdictional requirements 191 

of living persons 191 

legacy, interest on 203 

life tenant's rights 203 

period of contest 192 

property wrongly inventoried, how 

cured 195 

Probate homesteads 196 

Probate court, authority of 185 

" n cannot try title 187, 231 

" " can determine assets .... 187 

proof of death 204 

probate , necessity for 186 

right to make will 185 

sales and conveyances 197, 199 

sale to dummy of administrator void .... 198 

Sec. 1469, C. C. P 197 

subsequent deed defeats devise 190 

title on death 185 

wife should join administrator's 

deed, when 199 

wills defined 185, 188 

will and after acquired property 190 

wills , kinds of 188 

Evidences of title 55 

Executors. (See Administrators and 

Estates. ) 

Execution, proof of 64 

Execution 

after death of debtor 273 

defined 272 

discharged , how 272 

who may demand 272 

to whom issued 272 

when and how returnable 272 

Filled-in lands 32 

Fine as judgment lien 265 

Forged deed void 151 

Foreign signature 153 

■ instruments, recording of 153 



382 



Page 

Forest Reserve lands 26 

Franchise tax 131 , 340 

Fraternal societies, unincorporated 137 

Guarantee of title 55 

Guarantor of note 308 

Hindu as citizen 83 

Historical Review 1 

Homesteads 

who may claim 220 

what consists of 220 

value, how estimated 220 

statutory requirements 221 

what selected from 222 

how conveyed 225 

how encumbered 225 

of bankrupt 223 

handling in escrow 179 

not an encumbrance 220 

declaration not proof of facts 220 

effective from recordation 221 

on equitable interest 222 

on j oint tenancy property 222 

on Torrens title land 223 

in two counties 220 

by one co-tenant void 222 

only one valid, two declared 222 

form for husband and wife jointly 222 

defeats attachment 224 

" J. P. execution 224 

" unrecorded mortgage 224 

judgment on excess value 224 

proceeds of sale exempt 225 

subdivision plat , effect on 228 

on public land, exempt from debt 28 

in divorce proceedings 228 

vesting on death of spouse 230 

of insane person, how sold or mortgaged 226 

mortgage between spouses, void 226 

wife may redeem on foreclosure 226 

as to debts of deceased spouse 226 

on government land 17-25 

How abandoned 227 

unrecorded abandonment ineffective .. . 227 



383 



Homesteads (Continued) Page 

How abandoned (Continued) 

change of residence does not abandon 227 

trust deed does not abandon 227 

deed as mortgage does not abandon . . . 227 

quitclaim deed is sufficient 227 

by adverse possession 227 

separation agreement may abandon .... 227 

Probate homestead 196 

defined 196 

form for vesting 229 

rights of widow and minors 196, 229 

" ■ " under 1469 C. C. P. . 197 

Husband and Wife 

assignment by husband alone 240 

community property law defined 235, 236 

■ " in wife's name 241 

" " control of 237 

" " contract interest ... 241 

Debts as lien 235 

Dedication by husband alone 240 

Deeds between 241 

" by husband alone 239 

n to defeat probate 241 

" both must join in 238, 240 

" separate or community, construed . 240 

Mutual rights and obligations 235 

May hold property, how 236 

Sec. 172a, C. C. , discussed 239 

Separate property of husband 236 

" " n wife 236 

Vesting of title 237 

Wife may be sued alone 245 

Divorce 

alimony 245 

causes for 242 

death of one party 242 

disposition of property 242 

■ ■ homestead 243 

effect of annulment 245 

separate maintenance 242 

resumption of maiden name 245 

effect of reconciliation 244 

when f inal 244 

Incompetent , mortgage by 307 



384 



Page 

Inheritance tax 207 

Insurance in escrow 179 

Interest 

computation of 178 

on legacy 203 

Japanese. (See Aliens.) 
Joint tenancy 

all take under original grant 250 

created by single instrument 253 

corporations barred 250 

defined 250 

duration 250 

deed by one tenant 252 

mortgage by one tenant 252 

lease " " " 255 

deed of part of property, effect of .... 253 

form of deed necessary 251 

four unities explained 250 

j oint payees 254 

not estate of inheritance 251 

married men as joint tenants 253 

" man and another joint tenants .. 254 

proof of death 252, 230, 204 

wife's possible community right 253 

Joint note 303 

Judgments 

against an administrator or 

representative .. 262 

" a bankrupt 264 

■ a decedent 261 

n a lessee 263 

H equitable interest 264 

" municipality 264 

" vendee under contract 264 

■ vendor n ■ 264 

■ lease by administrator 199 

assignment of, not good notice 262 

all rank as equal liens 262 

affects actual interest of debtor 264 

defined 260 

death before rendition 261 

deficiency, when attaches 263 

" lien after redemption 263 

docketing wrong name 269 

docketed , when 260 

entered , when 260 

■ in what cases 260 



385 



Page 

Judgments (Continued) 

extent of lien 260 

Federal 264 , 265 

Fine as lien 265 

Justice court 261 

Jurisdiction upon debtor 262 

for alimony 262 

n costs 262, 267 

limited to amount prayed 260 

service found by court 262 

Small Claims court 265 

searching for 268 

transcript 261 

unrecorded deed defeats 261 

Satisfaction 

how made 266 

by appeal and stay bond 267 

by new trial granted 266 

by quitclaim deed 268 

by setting aside judgment 267 

must be acknowledged 266 

may be compelled 268 

partial, by attorney, not good 266 

objections to sureties 267 

as to one of several debtors 268 

Land measurements 40 

Lease 

by religious corporation 136 

■ administrator 199 

passes with deed 146 

License tax 129 , 341 

Maps 

administrator cannot dedicate 283 

contracts in violation of act, void .... 282 

dedication, effect of 282 

" by husband alone 283 

■ by trustee 283 

" of park or plaza 284 

mortgagee omitted, effect 283 

recording act 280 

as part of description 160 

Mark as signature. (See Deeds.) 

Marketable title 45 



Page 
Measurements and tables 40 

Mechanics' liens 

action to enforce 293 

amount recoverable 291 

completion defined 293 

defined 290 

farm land exempt 291 

form for policy 291 

law governing 290 

notice of work done 291 

" " completion 291 

" " non-responsibility 293 

original contractor, who is 290 

priority of lien 293 

property subj ect to 291 

review for searcher 294 

statutory requirements 290 

who may claim 290 

Merger. (See Mortgages.) 

Mexican land grants 2, 28 

" land laws 26 

Mining claims 18 

Minor ' s mortgage 306 

Mortgage 

on after acquired property 301 

additional advances 302 

assumption by grantee in deed 303 

actual notice on ground necessary 303 

assignment of 304 

by administrator without court order . . . 306 

" incompetent 307 

" minors 306 

" wife to secure debt of husband 306 

chattel mortgage 301 

" on growing crops 306 

" affidavit of good faith 301 

defined 300 

deficiency judgment waiver 305 

extension defined 304 

" and outlawry 304 

form to secure trust deed payments 305 

guarantee of note 308 

" is separate contract 308 



387 



Page 
Mortgage (Continued) 

Foreclosure 

after statute has run 311 

only one action on 310 

as to crop mortgagee 310 

" " junior encumbrancers 310 

no receiver ordinarily allowed 311 

title after 311 

against bankrupt 100 

is a conveyance 158 

in form of deed 300 

liability on note 303 

merger by deed 303 

misrepresentation by married man 304 

novation defined 304 

power of sale, effect of 301 

purchase money 302 

outlawed 304, 305 

renewal defined 304 

subordination of 305 

wrongly dated 302 

Redemption 

clear of deficiency 315 

in general 312 

by lessee 313 

wife may redeem homestead 226 

Release 308 

by foreign administrator 309 

by guardian 309 

effect of 308 

refusal to 309 

Name 

change of , in conveyances 149 

misnomer of corporation 127 

irregularity in recorded instrument .... 148 

Naturalization 85 

Cable bill 85 

Negative easements 116 

Notice by record 45 

Notice to mortgagee 303 

Notary public 65 

Qualifications and duties 65 



388 



Page 

Patent, original lost 32 

" recording of 47 

Perpetuities 

applied to trusts 354 

statute against 354 

Policy of title insurance 56 

Power of attorney 

defined 320 

general agency 321 

j oint powers 321 

by married women 321 

prohibited acts 320 

terminated, how 320 

over 7 years old, doubtful 322 

to mortgage not power for trust deed . . . 358 

Probate. (See Estates.) 

Proof of execution 64 

Public lands 

division of 2 

State land grants 4 

of U. S. A 15 

homestead is separate property 25 

forest reserves, lien selection 26 

Pueblo lands 3 

Race restriction clause, when lawful 117 

Railroad land grants 7 , 18 

Recordation 45 

Rents 

prorat ing of 178 

pass with lease under deed 146 

Reservations 

in deeds 166 

showing in certificate 168 

Restrictions. (See Conditions.) 

Reverter 

is property 116 

form for release of 119 



389 



Page 

Right of way of necessity 164 

Seal 

unnecessary on instruments 145 

Signature by mark 64, 152, 153 

■ in foreign language 153 

Small Claims Court 265 

Stamps on documents 330 

schedule of tax 330 

on coupon notes 332 

■ deeds 330, 332 

" exchange of properties 332 

" extension of mortgage 332 

" power of attorney 331 

" stocks of decedent 331 

" sheriff * s deed 332 

not on city deed 331 

" ■ contract of sale 331 

" " deed to trustee 332 

" " deed of correction 332 

B " deed of partition 332 

■ ■ Federal farm loans 333 

" " mortgage notes 331 

deduction of vendor's lien 333 

" " encumbrances 333 

deeds without stamps 333 

insufficient stamps, corrected 333 

postage stamps illegal 331 

rules and regulations 331 

State 

grant s to 4 

patents from 6 

Statute of Frauds 176 

Statute of Limitations 176 

Streets. (See, also, Maps.) 

easement by usage 156 

fee or easement in deed for 156 

Succession, defined 186, 204 

Swamp and overflow lands 19 






• 



. 






. 












390 






Page 
Taxes 

corporation taxes 129 , 340 

county weed tax 346 

excise tax 345 

exemption of veterans 345 

Federal taxes 342 

irrigation districts 346 

lien, when 342 

order of encumbrances 343 

oil protection districts 342 

payable , how 342 

personal property 343 

pro-rating in escrow 178, 344 

public lands before patent 344 

poll tax abolished 345 

priority of assessments 346 

redemption of part 344 

service by publication 345 

street bonds 346 . 

" " redemption 345 

Tide lands 29 

Timber claim, exempt from debt 28 

Torrens System 47 

Transfer defined 145 

Trusts 

business trusts 362 

charitable 354 

" need court order 355 

n some examples 355 

claim of interest by stranger 353 

lease of trust property 353 

permissible trusts 350 

Trustee 

all must act 352 

appointment of new trustee 352 

cannot deal with himself 353 

delegation of powers 352 

executor as 353 

foreign corporation under will 137 

identity, how established 352 

mortgage to 352 

perpetuity forbidden 354 

powers limited to trust 350 

proper party to action 354, 361 

sued as individual 353 

word "trustee" as notice 351 



Page 
Trust deeds 

acceptance not necessary 358 

additional advances not stated 358 

assignment by beneficiary 358 

beneficiary may be trustee 357 

n sale to 360 

■ as defendant 361 

" bankrupt 362 

corporation as trustee 359 

defined 356 

does not outlaw 357 

deficiency on sale 361 

execution by attorney-in-fact 358 

foreclosure not allowed 359 

legal title passes to trustee 357 

merger, deed from trustor to trustee 

is not 359 

sale , place of 359 

" notice of, to be recorded 359 

" postponement 360 

" price inadequate 360 

" of homestead 361 

" to beneficiary 360 

" surplus on 361 

" deficiency on 361 

searcher's duty covering sale 361 

trustee's deed conclusive 361 

" rights 361 

trustor's rights 357 

U. S. A. 

public lands 15, 25 

method of surveys 15 

homesteads 17 

patent to heirs of deceased claimant ... 25 

Unincorporated societies 137 

University lands 26 

Usury law 315 

Vacation 

affects easement only 284 

cannot be conditional 284 

deed carries street after 146, 164 

of park or plaza 284 

Veterans ' Welfare Board 155 

Waiver of deficiency judgment 305 

War Finance Corporation 137 

Wills. (See Estates. ) 

Witness defined 153 

Zoning ordinances 119 



fit.